The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that she was not entitled to wage loss benefits beyond February 2012 inrelation to her compensable condition.  Ahearing was held on October 19, 2015 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefitsafter February 15, 2012.

Decision

That the worker is entitled to wage loss benefits afterFebruary 15, 2012 up to August 1, 2013 inclusive.

Decision: Unanimous

Background

The worker filed a claim with the WCB for injury to her neck and shoulder that she related to cleaning a machine at work.

On June 15, 2010, the Employer's Accident Report stated that the date of accident was May 28, 2010. The description of accident was that the worker was cleaning the machine and felt pain in her neck along with dizziness and shaking. The pain went across her back and chest.

The claim for compensation was accepted by the WCB and benefits and services were paid to the worker. By January 25, 2011, the WCB determined that the worker's current condition was not medically accounted for in relation to the workplace injury of May 28, 2010. The adjudicative decision was confirmed by Review Office on May 27, 2001, December 7, 2011 and January 3, 2014.

On June 17, 2014, a hearing was held at the Appeal Commission based on an appeal by the worker with respect to Review Office's decision of January 3, 2014. Under Decision No. 98/14, dated July 22, 2014, the Appeal Commission determined the compensable diagnosis was myofascial pain of the neck, upper back and right shoulder and the condition remained compensable beyond January 25, 2011.

Subsequent file records showed that a WCB medical advisor reviewed the worker's claim file on November 21, 2014 and provided the following medical opinions to initial adjudication:

• the worker had received appropriate treatment for the accepted diagnosis of myofascial pain by February 2012 and would not have been totally disabled from this point onwards in relation to the effects of the compensable injury.
• the appropriate treatment for myofascial pain was provided by February 2012.
• myofascial pain was not typically associated with total disability.
• a requirement for permanent restrictions in relation to myofascial pain would not be expected.
• the proposed diagnosis of central sensitivity syndrome (CSS) was not medically accounted for in relation to the workplace injury.

In a decision dated November 24, 2014, the worker was advised of the WCB's position that "by February 2012, you have received appropriate treatment for the accepted diagnosis of myofascial pain, and would not have been totally disabled by that condition from that point onward, in relation to the effects of the workplace incident...you are entitled to payment of wage loss benefits and approved medical treatment expenses until February 15, 2012, inclusive. There is no medical evidence to support a need for ongoing workplace restrictions beyond that date."

On December 23, 2014, the Worker Advisor Office submitted to Review Office that the WCB case manager's decision was based entirely on the expectations of a WCB medical advisor, which was contrary to the medical evidence on file which supported that the worker had not recovered from her compensable diagnosis of myofascial pain and was therefore entitled to additional WCB benefits.

On February 20, 2015, Review Office determined that the worker was entitled to medical aid benefits beyond February 15, 2012. Review Office referred to the report of a physical medicine specialist dated December 12, 2012 to find that the worker continued to suffer, in part and at that time, from the ongoing effects of myofascial pain of her posterior neck, upper back and right shoulder. Given this finding, it was concluded that the worker was entitled to further medical aid benefits to treat the ongoing effects of the compensable diagnosis.

Regarding wage loss benefits, Review Office accepted the WCB medical advisor's opinion that the CSS was not a compensable condition substantiated by the medical evidence on file and therefore found that the worker was not entitled to wage loss benefits beyond February 15, 2012.

From a functional perspective, Review Office found that the worker did not require compensable workplace restrictions in relation to her compensable condition. Review Office acknowledged the worker's subjective pain levels but gave weight to non-compensable considerations in making its decision.

On February 23, 2015, the worker advisor appealed Review Office's decision to the Appeal Commission on the following basis: "We submit the worker is entitled to further wage loss benefits because the ongoing effects of her compensable injury warrant ongoing physical restrictions, which prevent her from returning to her pre-accident work and have resulted in an ongoing loss of earning capacity."

On October 19, 2015, a hearing was held at the Appeal Commission to consider the worker's appeal. Following the hearing, the appeal panel arranged for the worker to be assessed by an independent medical examiner to determine her current medical status in relation to her compensable condition. The examination later took place and the examination report dated December 9, 2015 was forwarded to the worker advisor for comment. On January 11, 2016, the panel met further to discuss the case and rendered its final decision.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB's Board of Directors.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an 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.

Worker's Position

The worker was represented by a worker advisor who provided a written submission in advance of the hearing. The worker advisor provided a summary of the submission. He noted that the WCB determined that there was a combination of symptoms from both the disc herniation and from the muscular injury. The worker was offered conservative treatment, but nothing provided any lasting relief.

The worker advisor noted that the worker returned to alternate work in September 2010, but still struggled with ongoing symptoms which, according her physicians, exacerbated her injury, and made it worse. He said that the light duties were actually more repetitive than her regular job. It also required intense use of her right hand and arm.

The worker advisor said that even though the worker had no change in her injury, the WCB stopped their support, determined that she no longer had symptoms of a disc injury, and felt that degenerative changes of the neck were likely responsible for her problems. The diagnosis of myofascial pain was used to describe the worker’s shoulder, upper back and neck pain.

He advised that the worker continues to suffer from myofascial pain and disagreed with the WCB decision to discontinue benefits in February 2012 based on the opinion of a WCB medical advisor who found that the worker had appropriate treatment, and that no further treatment was recommended. He noted the medical advisor also thought that myofascial pain would not result in permanent restrictions or total disability and also commented that central sensitivity syndrome was not a valid diagnosis and that the expanded pain that the worker

had complained about could not be attributed to the accident.

The worker advisor submitted that the worker is entitled to ongoing wage loss benefits because myofascial pain continues to be the applicable diagnosis to explain her neck, right shoulder and upper back pain. He noted that treatment continues to be beneficial and is ongoing. However, the compensable injury continues to prevent the worker from returning to work.

In answer to questions and with the assistance of an interpreter, the worker described the accident and resulting injury. She advised that she returned to work but found it too difficult. She said that the work involved cleaning household items and clothing.

The worker also described her contact with various medical service providers. She advised that

she sees a physician (physiatrist), who has told her that the accident at work damaged the muscles on her neck and right shoulder and on the back, all the back, upper right area. She said that she receives treatments which consist of injections in her muscles once or twice a month.

Regarding the impact of the treatments she explained that "At least now I can sleep better, more

peacefully, because before I had to spend the night sitting or walking around the house. At least now I can walk a little more." She said that she still has pain and is restricted in the duties she can perform at home.

Employer's Position

The employer did not participate in the appeal.

Analysis

The worker is appealing the WCB Review Office decision that she was not entitled to wage loss benefits after February 15, 2012. For the worker's appeal to be approved, the panel must find that the worker sustained a loss of earning capacity as a result of her workplace injury, beyond February 15, 2012.

After considering all the evidence, including the worker's evidence at the hearing, the report of the independent medical specialist, and the reply from the treating physiatrist, the panel finds on a balance of probabilities that the worker sustained an ongoing loss of earning capacity from February 15, 2012 until August 1, 2013.

In reaching this decision, the panel notes that it is bound by the prior decision of the Appeal Commission set out in Decision No. 98/14. This decision provided that:

Based on the foregoing, the panel is satisfied on a balance of probabilities that the earlier identified diagnosis of myofascial pain of the neck, upper back and right shoulder is a compensable diagnosis related to the May 28, 2010 workplace accident ... As such the worker is entitled to benefits for same. In making this decision, the panel notes that the later medical reports indicate more widespread complaints of pain which spread down the right side through the worker's torso, lower back and right lower extremity and propose new diagnosis of central sensitivity syndrome. The panel wishes to clarify that its decision is limited to the acceptance of myofascial pain to the neck, upper back and right shoulder only."

The panel notes that on August 1, 2013 the worker's treating physiatrist advised in a medical report that:

At this point, her diagnosis is central sensitivity syndrome primarily affecting her right head, neck and shoulder/upper extremity with spread down the right side through her torso, lower back and right lower extremity.

The panel finds that with the change in diagnosis noted by the treating physiatrist, the worker's condition ceased to be compensable as provided under Decision 98/14. Accordingly the panel finds that the worker is entitled to wage loss benefits for the accepted conditions until August 1, 2013 when the diagnosis changed to a diagnosis which the previous panel found not to be compensable.

The panel arranged for an examination by an independent specialist (IME). In a report dated December 9, 2015, the independent specialist provided opinions on the worker's current diagnosis and etiology of the diagnosed condition. Regarding the worker's current diagnosis, the IME report notes "the current diagnosis would be chronic non-specific pains of the right neck, upper back (thoracic region) and right shoulder." While the IME report notes soft tissue irritability in the cervical and shoulder regions, no myofascial trigger points were found.

The IME also provided information in response to questions including:

Question 3: Based on your findings and diagnosis, would [the worker] require any work restrictions? If so please outline the restrictions in detail including expected durations.

Answer: I cannot find anything objective on physical examination today that would indicate that she must avoid certain work activities due to concern for injury.

Question 4: Based on your findings and diagnosis, please provide your recommendations for treatment as well as the time frame in which treatment would be provided.

Answer: At this time I would encourage as much return to usual home and work activities as possible, and would impose or suggest no specific medical restrictions. She may benefit from medication directed towards her mood, perhaps with medication that addresses anxiety and depression. Concurrently, graded increases in use of the right upper limb would be encouraged.

The panel acknowledges the December 31, 2015 submission from the worker advisor. The panel agrees with the worker advisor that the IME pertains to the current medical presentation of the worker. In the panel's view, however, the IME confirms that the condition accepted under Decision 98/14 has resolved, as myofascial trigger points, a common feature in myofascial pain syndrome were no longer present on examination.

The worker's appeal is approved with payment of wage loss benefits to August 1, 2013.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 25th day of January, 2016