The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she had recovered from her compensable injury and was not entitled to benefits beyond August 28, 2012. A hearing was held on December 3, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to benefits beyond August 28, 2012.

Decision

That the worker is not entitled to benefits beyond August28, 2012.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a left shoulder injury that she related to her work activities on March 6, 2012. The worker stated:

On March 6th I was doing demo...I was taking strapping off the cinder block walls. I didn't realize I hurt myself at the time. I kept on working the rest of the week and my left shoulder became progressively worse. I am right handed. No hazard to the premises to cause my injury.

Following receipt of medical information from a chiropractor, the worker's claim for compensation was accepted based on the diagnosis of an acute post-traumatic cervicothoracic subluxation sprain, associated with distal instability, right brachial greater than left radiculitis, and myofascial hypertonicity.

On March 26, 2012, the worker aggravated her left shoulder injury when she was lifting a whistle fan into the back of a truck.

On June 12, 2012, the worker was seen by a WCB chiropractic advisor at a call-in examination and he opined that the worker suffered a soft tissue injury involving her left shoulder girdle as a result of the incident reported on March 6, 2012. He stated that the injury "would be classified as a strain/sprain to the left rotator cuff." There was also a mild cervicothoracic injury involving the left trapezius musculature.

The consultant concluded that the worker would benefit from active release therapy and/or acupuncture treatment and an appointment was made for the worker to see a chiropractor on June 18, 2012.

On June 18, 2012, the treating chiropractor diagnosed the worker with "ST pains in the cervicothoracic area." The worker was then provided with one active release therapy ("ART") treatment.

In a discharge report dated August 21, 2012, the treating chiropractor reported that the worker had full range of motion in her neck/shoulder with normal power and normal neurological findings. He noted that the worker required no further treatment as there had been no sustained benefit, only short term relief. The chiropractor concluded that the worker was not disabled and there was nothing objective to support any restrictions.

On August 23, 2012, the WCB chiropractic advisor who had seen the worker on June 12, 2012 opined that the worker had made a good recovery from her March 6, 2012 compensable injury and there was no evidence to support ongoing restrictions.

By letter dated August 28, 2012, the WCB advised the worker that her entitlement to WCB benefits and services would end effective August 28, 2012 as it was felt that she was capable of returning to her pre-injury duties with no restrictions.

On September 11, 2012, the worker submitted an appeal to Review Office indicating that she disagreed with the WCB's decision that she was fit to return to work. The worker noted that she had been sent to a medical clinic and was being referred to a pain management specialist.

On September 6, 2012, the worker was seen by a sports medicine physician who reported that the worker had "limited left lateral flexion and rotation, tenderness and visible spasm of right › left paracervicals, neuro normal." The consultant recommended that the worker continue with traction and trial acupuncture and that she stay off work until her condition improved. He also recommended a referral to a pain specialist.

In a report dated September 19, 2012, the pain specialist opined that the worker suffered predominantly with a repetitive strain injury/chronic mechanical neck pain syndrome with associated cervicogenic tension-type headaches. There was no radiculopathy. The specialist recommended that the worker undergo myofascial trigger point injections and occipital nerve blocks.

On October 23, 2012, a WCB medical advisor reviewed the worker's file and opined:

• the current complaints of pain in the area of the cervical spine and shoulders were not related to the March 2012 incident. The workplace accident was a strain-type injury which should resolve over four to six weeks.
• the reports from sports and pain medicine were indicative of non-specific non-radicular strain-type issues about the cervical spine and shoulders. The pain was myofascial in origin. As the worker had not been in a workplace environment in the last five months, a relationship to the March 2012 incident was not established on a patho-anatomic basis.
• the etiology of the myofascial pain was unknown but not consistent with the reported mechanism of injury.

By letter dated October 24, 2012, the WCB advised the worker that the current conditions she reported and the symptoms she was experiencing did not result from the workplace injury and the decision reached on August 28, 2012 remained unchanged. On October 29, 2012, the worker contacted Review Office to advise that she did not agree with the WCB's decisions of August 28, 2012 and October 24, 2012.

On November 2, 2012, Review Office confirmed that the worker was not entitled to wage loss or medical aid benefits after August 28, 2012 as it was unable to find that her neck, upper back and bilateral shoulder issues were still related to the March 6, 2012 compensable injury.

Review Office referred to the worker's position that the call-in examination of June 12, 2012 caused further injury to her neck and increased symptoms to her right shoulder and arm and that the ART treatment made her injuries even more painful. Following review of the call-in examination and the subsequent physiotherapy reports, Review Office was unable to find the evidence to support the worker's argument.

Review Office also stated:

"The information on file does not on a balance of probabilities suggest there is any causal connection between the March 6, 2012 accident and [the worker's] current health issues. The most recent medical findings from the sports medicine and pain management physicians are not consistent with the previous medical findings or with a strain type injury. The physiotherapy discharge report from August 21, 2012 is in line with a resolving strain and consistent with the previous medical information on file. The medical findings post August 21, 2012 are not related to [the worker's] strain injury of March 6, 2012."

In January 2013, the worker asked Review Office to reconsider its previous decision based on a report from her treating chiropractor dated December 20, 2012. The treating chiropractor outlined his opinion that there was a relationship between the worker's March 6, 2012 compensable injury and the worker's current upper back, neck, bilateral arms and shoulder pain.

On March 13, 2013, Review Office asked a WCB chiropractic advisor to review the December 20, 2012 report and answer four medical questions related to the worker's symptoms. A response from the WCB chiropractic advisor is on file dated March 15, 2013.

On March 18, 2013, Review Office advised the worker that:

"Your treating chiropractor's opinion on the likeliness of your ongoing pain complaints being related to the March 6, 2012 accident is not probable. The neck, shoulder and arm symptoms, first recorded on September 6, 2012 do not mirror a resolving strain injury as noted by the treating physiotherapist on August 21, 2012...Your treating chiropractor's letter of December 20, 2012 was reviewed for reconsideration of the November 2, 2012 Review Office decision. The Review Office is still of the opinion that your current upper back, neck and bilateral arms and shoulder complaints are not related to the March 6, 2012 accident and the original decision of November 2, 2012 will remain."

On June 20, 2014, the Worker Advisor Office wrote Review Office asking that they reconsider its decision of November 2, 2012. The worker advisor submitted that the March 26, 2012 accident (the worker lifted a whistle fan over the tailgate which was above waist to chest height of her large truck) was responsible for the worker's neck and upper back pain and the symptoms that continued beyond August 28, 2012. The worker advisor also submitted MRI results dated October 24, 2013 and stated: "...in addition to the compensable diagnosis of a sprain/strain, the ongoing compensable neck symptoms are also related to disc injuries which account for fluctuating greater right and greater left sided cervico/thoracic symptoms. The MRI identifies two levels of disc herniations that being central at C5-C6 and paracentral right at C6-C7."

On July 17, 2014, Review Office stated that it was unable to find that the October 24, 2013 MRI established a causal connection between the compensable accident and the worker's current symptoms. It also found no connection between the March 26, 2012 aggravation and the worker's new symptoms starting September 6, 2012.

Review Office indicated that the worker achieved a functional recovery as of August 21, 2012 and two weeks later she experienced new symptoms in her upper back, neck, bilateral arms and shoulders. These new symptoms and the subsequent diagnosis provided by the worker's treating physician (myofascial pain syndrome) was not related to the March 6, 2012 accident. Review Office remained of the view that the worker was not entitled to benefits beyond August 28, 2012.

On August 18, 2014, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was held on December 3, 2014.

Following the hearing, the appeal panel requested additional medical information from the worker's treating chiropractor and two physicians. On February 3, 2015, the worker and the worker advisor were provided with a copy of the medical reports received by the panel and were asked to provide comment. On February 19, 2015, the panel met further to discuss the case and render a decision.

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.

The worker has an accepted claim for a workplace injury. She is seeking benefits after August 28, 2012.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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. Subsection 27 (1) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Worker's Position

The worker was represented by a worker advisor.

The worker's representative submitted that the Review Office was unable to connect the worker's September 6, 2012 symptoms to her workplace accident. She noted that:

• the worker had more than one accident within a very short period of time and that these accidents together resulted in a right and left sided cervical and upper thoracic sprain.
• the area of injury and symptoms as of September 6, 2012 are related to both March 2012 workplace accidents.
• these accidents caused musculature injuries to her cervicothoracic area, which continued being right and left sided neck pain.
• the WCB chiropractic advisor examined the worker on June 12, 2012 and noted muscular discomfort in the right cervico-thoracic musculature from mid-neck region through the trapezius extending into the spine and scapula on the left side. He also reported that the worker suffered a soft tissue injury involving the left sided cervical, thoracic and left shoulder girdle musculature.

The worker's representative disagreed with Review Office's position that the worker recovered as of August 21, 2012. She said Review Office relied upon a chiropractor's report, dated August 21, 2012, but that the report stated there were continued symptoms to the neck and upper back, and confirmation that the symptoms returned after treatment. She said the chiropractor confirmed that the treatments have not resulted in sustained benefits.

She also referred to a September 6, 2012 report from a family medicine physician who confirmed bilateral neck pain, right greater than left, limited mobility, visible spasms of the right greater than left, paracervicals. He also reported that the return to regular duties was unknown.

In answer to questions from her representative, the worker advised that she did not have problems with her neck or upper back areas before the injury. Regarding the location of her pain she said:

"... originally in the right, it was the whole shoulder blade, like in between the shoulder blade, the muscle that’s up top, that runs from the shoulder into my neck. I was getting pain radiating down this arm. But I continued to work because, you know, I figured I could work around it. The pain on the left occurred when I lifted the whistle fan, it was instantaneous and it was a shooting pain that went from up my shoulder, up into my neck. It was just burning, my whole arm was burning, my neck was burning, my shoulder blade on the left was all burning. It was like a stabbing pain and then like a burning ache."

The worker's representative also noted that the worker saw a pain specialist who diagnosed myofascial trigger points and recommended treatments. The worker confirmed that she underwent the treatments from the pain specialist but discontinued the treatments because the relief was temporary and expensive. The worker's representative advised that the pain specialist opined that the worker continues to suffer from a strain injury, with chronic mechanical neck pain syndrome and has not recovered from the effects of the acute compensable injury.

The representative noted that a WCB medical advisor stated his opinion, on October 23, 2012, that the pain is considered to be myofascial in origin, as suggested by the multiple areas of myofascial trigger tenderness and also stated that the myofascial pain is not consistent with the reported mechanism of injury. He also states that the etiology of myofascial pain is unknown, but is not consistent with the reported mechanism of injury.

The worker's representative disagreed and referred to a report from a treating chiropractor at the time of the accident. The chiropractor provided a diagnosis of not only an acute strain, he also identified myofascial hypertonicity in the area of the neck and upper back.

The representative also disputed the WCB medical advisor's opinion that the etiology of the myofascial pain is unknown, she provided information from the Mayo Clinic,WebMD and from NYU Medical Centre that supported the position that myofascial pain can develop from an acute muscle injury or from excessive strain on a particular muscle or muscle group, that prompts the development of a trigger point.

The worker's representative submitted that as long as the compensable area of injury continues to be symptomatic, there is a need for further appropriate treatment, and there is a further WCB responsibility, particularly when the injured worker has not received all the recommended treatment.

The worker advised that she continued to see a chiropractor at her own expense.

The worker described the difficulty she has with exercising, house work and activities of daily living.

The worker advised that she has worked as a painter for more than 30 years.

With respect to the accident, the worker advised that she was using a crowbar when she injured her back the first time. She said the second injury occurred to her left side when she heaved to put a fan in the truck. She said the pain:

"went right up into my neck. It was down the muscle from my shoulder into my neck, and the whole shoulder blade cramped up. I could feel it down my arm. And originally it was like a really horrible, sudden, stabbing pain. And I mean it stopped me in my tracks instantly."

The worker advised that her original injury was to her right side but she did not claim for that injury and the second injury was to her left side. She said the WCB erred in not noting that she injured her right shoulder.

Subsequent to the hearing the panel obtained additional medical information from treating practitioners. In response, the worker's representative reviewed the medical information and submitted that

"...it remains our position that [the worker's] compensable muscular injuries continued to disable her from her employment. Therefore, there is a further WCB responsibility because [the worker's] muscular injuries continued to be related as a consequence of the March 2012 compensable accident(s) and she was not provided with appropriate treatment for her injuries by the WCB that delayed her recovery."

Employer's Position

The employer did not participate in the hearing.

Analysis

The worker is seeking benefits beyond August 28, 2012. For the worker's appeal to be approved, the panel must find that the worker sustained a loss of earning capacity and required medical aid after August 28, 2012. The panel is not able to make this finding.

In making this finding, the panel attaches significant weight to the June 12, 2012 call-in exam by a WCB chiropractic consultant. The consultant's findings included:

• no muscle wasting noted in shoulder girdle, arm, forearm, or hand musculature
• reflexes including biceps, triceps and brachioradialis were symmetrical
• cervical ranges of motion were full
• discomfort reported in the right cervicothoracic musculature from mid-neck region through the trapezius extending into the spine of the scapula on the left side
• foraminal compression testing was full range and on the right initiated cervicothoracic discomfort
• cervical compression and traction in the neutral position was pain free
• resisted muscle testing of the cervical paravertebral soft tissue revealed good strength without discomfort on testing
• shoulder ranges of motion were full range with normal scapulohumeral rhythm noted
• internal rotation on left was to level of T10, on right to level of T6
• thoracic ranges of motion were full range
• palpation of the upper thoracic musculature revealed mild tenderness from T1 to T4

The panel notes that the consultant's examination findings were mostly negative. He concluded that the worker suffered from a soft tissue type of injury involving her left shoulder girdle which he classified as a strain/sprain to the left rotator cuff and a mild cervicothoracic injury involving the left trapezius musculature. The consultant recommended treatment with active release/acupuncture techniques and referred to a different chiropractor.

The panel notes the worker attended the referral to the other chiropractor. In a report for an August 21, 2012 appointment the chiropractor stated that "This worker is not disabled. I have nothing objective to support any restrictions."

The panel finds that any loss of earning capacity after August 28, 2012 is not related to her March 2012 injuries.

The panel notes that the worker's symptoms were originally left sided and that over time the symptoms have become predominantly right sided. The panel is not able to relate the right sided symptoms to the workplace injuries.

The worker had an MRI on October 24, 2013. The MRI noted "degenerative changes are present" in the worker's cervical spine. The evidence does not connect the MRI findings to the worker's workplace injuries.

The worker underwent a physical exam in November 2013. The report of the exam does not note any findings of muscle atrophy. It does note reduced range of motion of the cervical spine as well as tight tender paraspinal muscles.

The panel finds, on a balance of probabilities, that the treatments received after August 28, 2012 are not related to the worker's workplace injuries.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
C. Devlin, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 24th day of March, 2015