The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was capable of returning to his pre-accident duties and therefore was not entitled to wage loss benefits after October 23, 2014. An oral hearing was held on April 20, 2016 to consider the worker's appeal. The hearing reconvened on September 14, 2016.

Issue

Whether or not the worker is entitled to wage loss benefits after October 23, 2014.

Decision

That the worker is not entitled to wage loss benefits after October 23, 2014.

Background

On January 2, 2012, the worker suffered an injury to his left shoulder and neck when the vehicle he was driving was struck head-on by an SUV that swerved into his lane. The worker attended medical treatment for his injuries and resumed modified duties on February 26, 2012. On May 14, 2012, a WCB medical advisor opined that the current diagnosis according to the medical information on file was left-sided neck pain with radicular features.

On May 17, 2012, the worker underwent an MRI assessment and was seen by a neurologist on October 30, 2012 who reported:

An MRI of the cervical spine and brachial plexus has been essentially unremarkable. There is no definite evidence of a radiculopathy or plexopathy. His symptoms are on the basis of a localized myofascial pain syndrome. If physiotherapy is unable to improve the symptoms then I would suggest a referral to a physical medicine specialist.

On November 11, 2012, a WCB medical advisor noted that the consulting neurologist suggested a possible diagnosis of myofascial neck pain and that the findings included multiple areas of muscular tenderness about the left neck and shoulder girdle musculature. The medical advisor indicated that he would arrange the referral to the physical medicine specialist and in the interim, the worker could safely resume his pre-accident duties on a graduated basis.

On December 19, 2012, the worker was provided with details concerning the graduated return to work program and by January 27, 2013, the WCB was of view that the worker would be back at full hours performing his pre-accident driving duties.

File records show that the worker's treating physician opined that the worker was still suffering from persistent neck and left shoulder pain and was not capable of returning to his full pre-accident duties. In January 2013, the treating physician reported that the worker had decreased range of motion in his neck and severe anxiety.

On February 14, 2013, the WCB advised the worker that it remained of the opinion that he was capable of returning to his pre-accident duties effective January 27, 2013 and that his difficulties with anxiety were not related to his work injury of January 2012.

On May 1, 2013, a physical medicine and rehabilitation specialist (physiatrist) reported that the worker had a history of what appeared to have been a whiplash type strain to his neck and shoulder. The examination showed some soft tissue irritation at the left neck/top of the shoulder and scapular/interscapular areas on the left. The worker also had signs of depression and was experiencing flashbacks, nightmares and sleep difficulties. A multi-disciplinary rehabilitation program was recommended as well as a psychological evaluation with respect to mood issues.

On July 21, 2013, the case was considered by Review Office to determine whether or not the worker was entitled to further benefits for his physical injuries involving his neck and left shoulder. Review Office ultimately determined that the worker was not capable of returning to his driving duties until he was further assessed and treated for myofascial pain about the neck and shoulder areas.

On December 4, 2013, the WCB wrote the physiatrist requesting that he reassess the worker to determine his current medical status and to determine whether a reconditioning program was still warranted. On December 18, 2013, the specialist recommended a multidisciplinary program of 8 to 10 weeks duration pending the results of an upcoming left shoulder MRI. On January 22, 2014, the left shoulder MRI showed minor fluid within the AC joint.

On January 28, 2014, a WCB medical advisor opined that the worker would be capable of returning to unrestricted duties following the 8 week reconditioning program. On February 25, 2014, the worker was advised that his WCB benefits would conclude at the end of the program.

In a progress report dated March 13, 2014, it was reported that the worker was functioning within the medium strength demand level. The worker's main complaint was of pain in his neck which radiated down his left arm into his fifth digit.

On July 11, 2014, the case was again considered by Review Office, as the worker disagreed that he was capable of returning to his pre-accident duties. Based on its review of the file information, Review Office concluded that while the reconditioning program was successful in increasing the worker's strength, it found the program did not address the worker's reports of pain and tingling. Review Office directed that the worker receive the recommended treatment for the myofascial pain in his left shoulder and neck that was outlined by the treating physiatrist.

The worker then underwent treatment which consisted of physiotherapy, soft tissue release, dry needling therapy and acupuncture as well as a Functional Capacity Evaluation ("FCE") on October 7, 2014.

In a decision dated October 22, 2014, the worker was advised that he was not entitled to further wage loss benefits as the file information supported that he was currently able to perform his pre-accident job duties.

On October 24, 2014, a WCB medical advisor reviewed the FCE report and said the assessment was considered valid, noting 34 of 44 consistency measures were within expected limits.

On May 25, 2015, the worker's union representative appealed the October 2014 decision to Review Office. On July 22, 2015, the employer's representative submitted to Review Office that the worker had received adequate treatment to eliminate the residual effects of the January 2012 MVA and that the decision of October 22, 2014 should be confirmed.

On August 20, 2015, Review Office determined that entitlement to wage loss benefits did not exist beyond October 23, 2014 and that the worker was not entitled to further medical treatment beyond October 23, 2014. Regarding the worker's physical capability, Review Office said the file evidence supported that the worker was physically capable of returning to his pre-injury work duties and that he had received the required treatments within his last therapy program such as physiotherapy, manual treatment, soft tissue release, dry needling and acupuncture.

Review Office also found that the initial recommendation outlined in the physiatrist's report of May 1, 2013 regarding a psychological assessment to aid in pain management had yet to be addressed by Compensation Services. As such, Review Office directed Compensation Services to arrange the assessment and provide the worker with an adjudicative decision based upon the results of that assessment.

On October 26, 2015, the union representative filed an appeal with the Appeal Commission regarding Review Office's decision that the worker was not entitled to wage loss benefits beyond October 23, 2014 and an oral hearing was held on April 20, 2016.

The April 20, 2016 hearing was adjourned and it reconvened on September 14, 2016.

Reasons

At the initial hearing on April 20, 2016, the worker's representative referred to medical reports from an occupational health physician who had referred the worker to other specialists and to a Functional Abilities Forms provided on behalf of the worker for use by his disability insurer. The worker's representative provided the panel with copies of the occupational health physician's referral letters and the forms that had not been provided to the employer or the panel prior to the hearing. The worker also advised that he attended a chiropractor and a new family physician. The panel decided to adjourn and obtain medical reports from the chiropractor and physician.

The panel subsequently received a report from the worker's new treating physician dated May 2, 2015, a copy of an MRI report dated May 17, 2012, and a copy of a report from a chiropractor dated April 29, 2016. All new medical information was shared with both parties.

The hearing reconvened on September 14, 2016.

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(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.

The worker has an accepted claim for an injury arising from a January 2012 accident. He is seeking wage loss benefits after October 23, 2014.

Worker's Position

The worker was represented by a union representative. The worker's representative and the worker answered questions from the panel.

At the first hearing, the worker's representative provided a summary of the worker's claim commencing with the worker's injury in a motor vehicle collision on January 2, 2012. The worker's representative noted that the worker received various treatments and was found by the WCB to be fit to return to work as of October 23, 2014. The worker's representative submitted that: The WCB adjudicator, along with the review officer, both failed to see that the medical treatment recommended by the treating doctors was not followed in a coordinated and timely manner to have the required effect…

That is why the worker's health has not improved and he is still unable to return to his pre-accident duties as a [job titl[AS1]e].

The worker's representative relied upon the opinions of a treating chiropractor, a physiatrist and an occupational health physician in support of the worker's position that he has not received the proper treatment and is not fit to return to his duties.

At the reconvened hearing, the worker and his representative answered questions from the panel. It was noted that a medical report from the new treating physician indicated that the worker sustained a concussion. When asked about this diagnosis, the worker advised that he had reported this to a physician at the time of the injury. He said that he reported losing consciousness for a short period at the time of the collision and could not remember details of what happened.

In reply to a question from the panel, the worker's representative confirmed there was no reference to a brain injury on the file in 2014.

It was also noted that the new treating physician referred to post head injury tinnitus. The worker advised that he had reported that he had ringing in his ears, from the beginning. Regarding the worker's visits to a chiropractor in January and March 2015, the worker advised that on the second visit the chiropractor noticed "something, like a lump" near his shoulder which the chiropractor released. The worker advised that he gets pain in the area between the shoulder blade and the spine. He said that "sometimes it just comes and goes."

The worker expressed concern that the WCB prolonged his claim by not authorizing the recommended treatment in 2012 and beyond. This in turn caused his condition to worsen. His representative agreed that he has never really received the treatment that he deserved to have in order to recover.

Employer Position

The employer was represented by its Workers Compensation Coordinator.

The employer representative noted there has been a multidisciplinary approach to dealing with the worker's injury and that the worker was provided with the treatments and services initially recommended by the physiatrist.

Regarding the recently received report from the occupational health physician, the employer representative submitted that the report was provided by an organization which has a mandate to advocate and aid workers, and needs to be taken in that context.

The employer representative submitted that, overall, the new or additional medical received by the panel appears to be restarting the cycle of investigative and treatment activity that has already been exhausted. He submitted that when the functional capacity evaluation was completed in October 2014, the preponderance of medical information, indicated that the worker was capable of returning to his pre-accident job as a driver.

The employer representative did not support further wage loss benefits.

Analysis

The worker has an accepted claim and is seeking wage loss benefits after October 23, 2014. For the worker's appeal to be accepted, the panel must find that the worker sustained a loss of earning capacity as a result of his workplace injury after October 23, 2014. In other words, the panel must find that the worker could not perform his employment duties as a result of his workplace injury. The panel was not able to make this finding.

In reaching our decision, the panel attaches significant weight to the report of the physiatrist who examined the worker on April 29 and December 16, 2013. The physiatrist concluded that the worker likely sustained a typical whiplash mechanism, musculoligamentous strain to the cervical spine and left shoulder. The panel accepts this is the diagnosis of the worker's injury which resulted from the accident. The panel notes that the physiatrist recommended that the worker undergo a multidisciplinary rehabilitation program. The panel also notes that while there was a delay in providing this program, the worker did ultimately participate in such a program.

The panel also notes that the worker was referred by the WCB for a Functional Capacity Evaluation ("FCE"), which was conducted on October 7, 2014. The worker was evaluated by a physiatrist. The report of this evaluation was provided on October 8, 2014. The evaluator concluded:

[Worker] did well in the FCE. He performed at the Medium physical demands level, with good reaching testing parameters, although he moved slowly at times with certain movements. Over-all it is felt that his physical abilities demonstrated would permit him to return to work as a [driver] at this time.

The panel also considered whether there was a psychological component to the worker's inability to work. The panel finds there was not a psychological component based upon the opinion of the WCB psychological consultant who interviewed the worker in November 2015. The psychological consultant concluded that:

Based on the claimant's report and presentation today, as well as on information available on file, he does not appear to be experiencing any psychological diagnosis or disorder related to the compensable injury. He was informed of this opinion and stated that he agreed with it.

The panel notes that at the hearing, the worker identified pain in the scapular area as a main problem. The panel is not able to relate this pain to the worker's injury which occurred in 2012. The panel notes that the physiatrist who examined the worker in 2013 made reference to a mild pain in this area. The panel finds, on a balance of probabilities, that evidence does not support a connection between his current pain and the workplace accident. The panel does not attach weight to the opinions of the chiropractor and occupational health physician who first saw the worker in 2015, the panel places greater weight on the opinion of a physiatrist who examined the worker in 2013. The panel notes that the worker has other complaints of injury including a concussion, which he relates to the workplace injury. The panel is also not able to relate these other complaints to the workplace injury.

The panel finds, on a balance of probabilities, that the worker is not entitled to wage loss benefits after October 23, 2014. The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of October, 2016