The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that he had recovered from his compensable injury and was not entitled to wageloss benefits after October 31, 2014.  Ahearing was held on June 25, 2015 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefitsafter October 31, 2014.

Decision

That the worker is not entitled to wage loss benefits afterOctober 31, 2014.

Decision: Unanimous

Background

On August 18, 2014, the worker felt a thumping in his chest which he related to his work duties that day which involved carrying heavy material.

Medical information showed that the worker attended a hospital emergency facility for treatment on August 19, 2014 and was later seen by two physicians and a physiotherapist.

On October 8, 2014, a WCB medical advisor reviewed the medical information and stated:

Based on the information available this worker's episode of rapid heartbeat does not indicate any disease process. The information available, including EKG, pulmonary functions, enzymes studies are all essentially normal, indicating no evidence of cardiac or pulmonary pre-existing problems. Clinical examination by the practitioner indicates strain chest wall muscle on the left chest wall...Currently diagnosis and restrictions would suggest strain muscles of left chest wall - on a balance of probability the natural history of this condition is recovery in 6-8 weeks. There would therefore be no restrictions at this time.

File information showed that the WCB spoke with the worker and the treating physiotherapist regarding the worker playing volleyball in September 2014.

In a letter dated October 24, 2014, the WCB advised the worker that based on the WCB medical opinion of October 8, 2014, it was determined that he was fit to return to his regular job duties and that benefits would be paid to October 24, 2014 inclusive. The WCB advised the worker that he was still eligible to attend any remaining pre-authorized physiotherapy sessions.

On November 21, 2014, the worker appealed the above decision to Review Office. The worker stated:

I am unable to lift required weight for work as this still causes pain. WCB determined without ever seeing me that my recovery time was 6-8 weeks whereas physio determined recovery was 4-5 months.

On January 26, 2015, the worker was seen by a sports medicine consultant at the request of the treating practitioner. The consultant stated in part:

...findings are consistent with resolving costochondritis. By history, this would be most consistent with repetitive stress injury from his workplace activities. There are no indications of secondary inflammatory process at this time. His symptoms have improved and I feel he could return to work with restrictions of no lifting more than 50 pounds.

In a decision dated February 9, 2015, Review Office determined that the worker was entitled to wage loss benefits up to and including October 31, 2014.

Review Office referred to the early medical information on file from August 27 through to September 16, 2014. Review Office concluded that the worker had recovered from his probable chest strain injury by October 24, 2013 and was functionally capable of a full return to work without restrictions by that time. Review Office stated that it accepted the WCB medical opinion outlined on October 8, 2014.

Regarding the opinion provided by the sports medicine consultant that the worker was likely recovering from costochondritis of his chest wall in relation to "repetitive stress", Review Office felt the consultant provided no objective findings to support his conclusion and that he relied heavily on the history provided by the worker.

Based on the limited findings on the August 19 emergency report and the worker's description of injury, it was unlikely that a significant injury occurred on August 18, 2014.

Review Office also placed weight to third party reports of the worker playing sports that included smashing (overhead spiking the ball) and serving overhead. Review Office indicated that the worker would not have been capable of participating in these type of rigorous movements if he suffered from acute costochondritis.

Based on WCB policy, Review Office confirmed that the worker was entitled to wage loss benefits to October 31, 2014, one week from the date he was notified of the change in his benefit entitlements. On February 23, 2015, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable legislation

In considering this appeal, the panel is bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

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 earnings capacity…” Subsection 39(2)(a) of the Act provides that the WCB will pay wage loss benefits until such time as the worker’s loss of earnings capacity ends, or the worker attains the age of 65 years.

Worker’s Position

The worker was self-represented in this appeal. The worker started to work for the employer approximately six or seven weeks before suffering a compensable injury on August 18, 2014.

The worker was employed as a labourer. He testified that the employer’s work was limited to new home basement construction. His work crew would spend approximately one day on each new home. After the forms for the footings had been assembled, the crew would place plywood forms around and part way up the perimeter of the basement walls. Long pieces of 15 mm thick rebar were tied into the forms to add strength to the poured concrete.

Occasionally, the worker’s crew would also be involved in preparing forms for the pouring of concrete piles. The worker testified that he regularly carried 80 plus pounds of material. On the day of his injury, the worker had carried a bundle of rebar. The worker did not experience any adverse reaction or pain when working that day. However, when he was sitting in the truck after having completed work, he felt his chest palpitating. He assumed it was a problem with his heart. He testified that he arrived at that conclusion because there were times after he had played basketball when he would “almost get a flutter” in his chest.

The next day, the worker sought treatment at a hospital emergency clinic. The emergency report states that the worker complained of heart palpitations that had begun the previous day. The palpitations were said to be uncomfortable but they were not accompanied by pain. The palpitations occurred only at rest. The worker advised that he felt a shortness of breath and light-headedness when experiencing the palpitations. He was discharged without admission to the hospital. Plans were made for further medical testing.

The worker was examined by his physician on August 27, 2014 and medical tests were ordered. His physician stated that the worker was capable of performing very light duties. It was noted that the worker was arranging to see his own physiotherapist.

On September 16, 2014, the worker was examined by a family physician. The physician’s report stated that the worker, subsequent to having initiated strenuous employment, experienced an event (on August 18) that resulted in “twitching” and “fluttering.” That situation resolved after two weeks. The report stated that when the worker attempted to return to work, he was met with “sharp stabbing” anterior chest pain when lifting. Based on file information, the employee’s attempted return to work was limited to five hours (of which 3 1/2 were driving) on August 25, 2014 and one hour on September 2, 2014.

The doctor advised that the worker could return to work but should not be lifting, carrying or straining his chest wall. No mention was made of any chest pain being experienced by the worker in the two weeks prior to this examination.

A 24 hour Holter study, conducted on September 18 and 19, failed to reveal any cardiac-related issues.

A WCB medical advisor's opinion of October 8, 2014 addressed the issue of whether the worker’s heart palpitations, pain and dizziness were related to a cardiac condition or a muscle strain/pull. The WCB medical advisor, after concluding that the issue was not cardiac related, stated:

Currently diagnosis and restrictions would suggest strain muscles of left chest wall on a balance of probability. The natural history of this condition is recovery in 6-8 weeks. There would therefore be no restrictions at this time.

After his injury, the worker made arrangements to be treated by his own physiotherapist. That physiotherapist had previously treated the worker for a torn rotator cuff suffered approximately five years earlier. The worker testified that his physiotherapist classified his injury as costochondritis “right from the start.”

At the time of his initial examination on September 14, 2014, the worker’s physiotherapist stated that he anticipated that the worker’s treatment would involve two to three sessions a week over a period of four to six weeks. His report made no mention of costochondritis. Reference to pain was limited to tenderness to the pectoral musculature on stretching and isometric contraction. The diagnosis was stated to be “chest upper extremity, R/C sprain.”

When the physiotherapist subsequently examined the worker on October 18, 2014, he reported significant improvement in the worker’s condition. The worker was stated to be capable of returning to work, with a lifting restriction of 20 pounds or less and a direction to avoid overhead duties and to minimize repetitive tasks and pushing/pulling duties. Strenuous activities were to be kept within the worker’s “body envelope.”

After the worker’s wage loss benefits were discontinued effective October 31, 2014, the worker’s physician referred him to a specialist in Sports Medicine. That physician’s report of January 25, 2015 stated that the worker’s medical findings were consistent with resolving costochondritis, and that by history, this would be most consistent with repetitive stress injury from his workplace activities. The report noted that the worker had exhibited a very slow improvement over the last several weeks and that his pain had improved considerably. This information would have been based solely on the worker’s self-report.

At the hearing, the worker was questioned with respect to file information that indicated he was playing volleyball after his injury. The file information reveals that an adjudicator spoke with a fellow employee who had attended the two sessions where the worker had played volleyball. This witness described the games as being Tuesday night “pick-up” games. He stated that the worker was making overhand serves, spiking the ball and jumping. The adjudicator also spoke to the worker’s physiotherapist about this activity. The physiotherapist advised that underhand serves would not be a problem but spiking and jumping and overhand serving would be “overdoing it.”

The worker stated he had played twice during the first half of September. He played with a multi-age recreational church group that played once a week. He testified that as long as he used his right arm he could participate without a problem, but if he used his left arm for overhead spiking, then he experienced problems. He played until his involvement was reported to the WCB. He has not played since then.

Employer’ Position

The employer did not appear and did not take a position.

Analysis

The worker is seeking wage loss benefits beyond October 31, 2014. For the worker’s appeal to be successful, the panel must find that the worker continued to have a loss of earning capacity as a result of his workplace accident after October 31, 2014. The panel was not able to make that finding. The panel finds, on a balance of probabilities, that the worker did not sustain a loss of earning capacity due to the workplace injury after October 31, 2014.

In reaching this decision, the panel attaches significant weight to the following:

1. The worker’s injury on August 18, 2014 first manifested itself after the worker had completed his day’s work. The symptoms were limited to chest palpitations. There was no accompanying pain.

2. On September 16, 2014, the worker was examined by his family physician. The report from that visit stated that the worker’s initial symptoms had resolved after two weeks. The physician, on examination, noted bilateral tenderness of the worker’s pectoral muscles on palpitation and with isometric contraction. The physician diagnosed a strain and stated that he anticipated a four to six week recovery period.

The report noted that when the worker had attempted to return to work, he was met with “sharp stabbing” anterior chest pain when lifting. Based on file information, the employee’s attempted return to work was limited to five hours (of which 3 1/2 were driving) on August 25, 2014 and one hour on September 2, 2014.

The panel notes that pain on lifting would be consistent with a pectoral muscle strain.

The physician advised that the worker could return to work but should not be lifting, carrying or straining his chest wall. No mention was made of any chest pain being experienced by the worker in the two weeks prior to this examination.

3. The Medical Advisor who reviewed the worker’s file on October 8, 2014 confirmed that the normal recovery period for a chest wall strain is between six and eight weeks. He also confirmed that based on a review of the medical information on file, there was no evidence to support any on-going medical restrictions.

4. The sports medicine physician who met with the employee on January 25, 2015 commented that the employee was likely recovering from costochondritis of his chest wall in relation to the “repetitive stress” of his job duties. He noted that his diagnosis relied heavily on a history provided by the worker. No clinical findings were cited to support his conclusion. The panel's understanding of costochondritis is that it is an inflammation of the cartilage that connects a rib to the breastbone whose etiology is often unknown. The pain caused by costochondritis might mimic that of a heart attack or other heart condition. Costochondritis usually improves on its own, although it might last for several weeks or longer. Treatment focuses on pain relief.

5. The worker’s participation in recreational volleyball during the first half of September, 2014 suggests that he was at or near full functional levels at that time. It is consistent with the Medical Advisor’s opinion that the worker would have recovered from his injury by October 8, 2014.

On a balance of probabilities, the panel finds that the worker suffered a minor chest strain that caused some pain when lifting. The panel accepts the opinion of the WCB medical advisor that the injury would have resolved by October 8, 2014, and that the worker could have returned to work at that time.

It is therefore the panel’s decision that the worker is not entitled to benefits after October 31, 2014. The worker's appeal is denied.

Panel Members

D. Kells, Presiding Officer
C. Devlin, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

D. Kells - Presiding Officer

Signed at Winnipeg this 20th day of August, 2015