The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 5, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on September 5, 2001 and January 16, 2002.

Issue

Whether or not the worker's foot problems are related to the compensable injury of January 26, 1994; and

Whether or not the worker is entitled to full wage loss benefits beyond January 1, 1997.

Decision

That the worker's foot problems are not related to the compensable injury of January 26, 1994; and

That the worker is not entitled to full wage loss benefits beyond January 1, 1997.

Decision: Unanimous

Background

On January 26, 1994, the claimant injured her back when she slipped and fell on a freshly waxed floor during the course of her employment as a variety clerk. On the same day of accident, the claimant was diagnosed with an acute low back strain with possible compression fracture of the lumbar spine. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on January 27, 1994. File records also showed that the claimant has had previous work related back injuries.

On August 3, 1994 a CT scan of the lumbosacral spine revealed a disc protrusion at L5-S1 on the right side. On September 21, 1994, the claimant underwent an L5-S1 lumbar disc excision.

In a report dated December 21, 1994, the treating orthopaedic surgeon reported that the surgical procedure had been unsuccessful and he suggested that the claimant return to work at alternate duties.

A progress report from the attending physician dated February 10, 1995, noted a change in diagnosis to chronic pain syndrome and a possible disc fragment.

Following an August 25, 1995 assessment, a WCB orthopaedic specialist was of the impression that the claimant suffered from right buttock and leg pain, the etiology of which was unknown. There was no evidence of ongoing nerve root irritation as a cause for her pain. Objective findings were minor degenerative changes on x-ray and true myofascial trigger point phenomena. The specialist opined that the claimant's abnormal or amplified pain behavior was the main contributing factor to her perceived lack of disability. He recommended that the claimant undergo a functional restoration program with active treatment for her myofascial trigger points, followed by aerobic conditioning and work simulated tasks. The claimant was considered partially disabled and capable of sedentary work only. File documentation showed that the claimant attended a reconditioning program for only 2 sessions, but was very pain focused.

A medical advisor from the WCB's pain management unit interviewed the claimant on January 12, 1996. She noted that the claimant was willing to consider sedentary work in a graduated return to work program. In view of this, the medical advisor stated that she was not prepared to assign the claimant with a diagnosis of chronic pain syndrome.

Following discussions with the claimant, the union representative and the employer, the claimant commenced an 8 week graduated return to work program in February 1996. It was anticipated that upon completion of this program the claimant would resume her regular duties as a variety clerk.

In March 1996, the claimant was experiencing a lot of difficulty with the light duty program and was not able to work more than 4 hours per shift. In April 1996, the claimant discontinued working due to the pain in her back and right leg.

On April 23, 1996, an MRI of the lumbosacral spine showed epidural fibrosis at L5-S1, which encased the right L5 nerve root.

In May 1996, a WCB medical advisor reviewed the file together with a report from the treating orthopaedic specialist dated April 29, 1996. He noted that the claimant had some scarring around the nerve root, which could account for some of her pain complaints. He believed that the claimant's ongoing difficulties were due to the epidural fibrosis of the right L5 nerve root, which was a result of the previous disc surgery. The claimant was considered capable of full time work. Permanent restrictions were also outlined.

The claimant was advised by the WCB on May 27, 1996 that she was considered capable of full time work with permanent restrictions and that she should resume her graduated return to work program until such time as discussions took place with the employer with regard to her employment situation.

In a progress report of July 31, 1996, the attending physician noted that the claimant had low back and right leg pain together with "limping, numbness in feet".

Arrangements were made with the employer to modify the claimant's pre-accident position of a variety clerk in order to accommodate her restrictions in October 1996. At a meeting held on October 2, 1996, the claimant indicated that she was experiencing bleeding in her stomach due to the intake of anti-inflammatory medication for her compensable condition. As a result, the doctor advised her to stop taking the medication, which was causing her feet to swell and become painful. The claimant felt that this impacted on her ability to participate fully in the return to work program.

On November 25, 1996, the treating physician commented that the claimant developed painful feet, which had been diagnosed as metatarsalgia bilaterally with some plantar fasciitis. The claimant attributed the pain in her feet to her abnormal gait as a result of her back pain. The physician stated he was uncertain if this was the case since the claimant recently stated that everything hurts, her feet, back and head. On December 4, 1996, a WCB medical advisor was of the view that there was no reason to believe that the claimant's current foot difficulties were related to the effects of the 1994 back injury.

In a letter to the claimant dated December 17, 1996, a Vocational Rehabilitation Consultant (VRC) determined that the physical requirements of the Out-Of-Stock position were within the claimant's capabilities with regard to the compensable back injury. As a result, compensation benefits would be reduced based on the Out of Stock position as of January 2, 1997.

On February 5, 1997, primary adjudication determined that the weight of medical evidence did not support a causal relationship between the development of her foot difficulties and the compensable injury, on a balance of probabilities.

In October 1997, correspondence from the employer indicated its concern over the claimant's attendance and reliability. The employer noted that the claimant only worked 5 complete weeks from June 1, 1997 to September 20, 1997.

In a progress report of December 2, 1997, the attending physician noted that the claimant had marked limitation of her right straight leg raising and was unable to do lateral tilt or a lateral rotation of the lumbar spine without pain and muscle spasm. The physician recommended that the claimant rest and be off work for 2-3 weeks. Following consultation with WCB Healthcare Services, the claimant was advised that no benefits were payable between December 2, 1997 to January 5, 1998, as the WCB felt there was no reason why she could not perform employment activities within her restrictions.

On March 26, 1998, the claimant was assessed by a physiatrist. In his report of April 15, 1998, the physiatrist indicated that the claimant's chronic foot symptoms "can be explained on the basis of referral pain from the soleus to the heels and from the gastroc nemius to the arches of the foot."

On July 16, 1998, a WCB medical advisor reviewed the case along with the report from the physiatrist dated April 15, 1998. The medical advisor commented that the current diagnosis was fibromyalgia and that there was no direct relationship between this diagnosis and the work injury. He felt that the physiatrist's treatment was appropriate but that it was not related to the compensable injury. The medical advisor stated that fibromyalgia likely was the underlying problem, which was missed for some time. This may explain the chronicity and the widespread myofascial pain.

In January 1999, the claimant was assessed by a WCB physical medicine and rehabilitation specialist. On May 11, 1999, primary adjudication noted the medical advisor's opinion that his examination did not suggest any significant lumbosacral root compression. There were, however, some symptoms being produced that were a result of the lower lumbosacral nerve root involvement with scarring. A cause and effect relationship was therefore established. He recommended that the permanent partial restrictions previously implemented would remain the same.

On June 15, 2000, a union representative, acting on behalf of the claimant, appealed the decisions made by primary adjudication on February 5, 1997 and May 11, 1999. Reports were also submitted from the attending physician dated June 1, 1999 and the treating physiatrist dated April 6, 1999.

In a decision by Review Office dated December 15, 2000, it was determined that the claimant's foot problems were not related to her back injury, that the claimant's restrictions were appropriate and that the claimant was not entitled to full wage loss benefits subsequent to January 1, 1997.

With respect to the issue of whether the claimant's foot complaints were related to her back injury, Review Office was of the opinion the weight of evidence did not support that there was any relationship between the two. In reaching this conclusion, Review Office referred to the opinions expressed by the attending physician on November 25, 1996 and the comments by the physiatrist on April 15, 1998.

Review Office noted that the claimant's restrictions were extensive and significantly limiting and precluded her from working at many jobs. There was no evidence, however, that the claimant's restrictions were not an accurate representation of the limitations imposed on her by her back injury.

Regarding the issue of entitlement to full wage loss benefits subsequent to January 1, 1997, Review Office felt the evidence failed to show that the claimant was not capable of performing the work that was offered to her by her employer and therefore she was not entitled to wage loss benefits. On February 9, 2001, the union representative appealed Review Office's decisions with respect to the claimant's foot problems and her entitlement to wage loss benefits. An oral hearing was arranged for September 5, 2001.

Following the oral hearing, the Panel met to discuss the case and requested that the claimant be assessed by an independent specialist with regard to her current medical status. On November 29, 2001 a physical medicine and rehabilitation specialist assessed the claimant and the evaluation report was forwarded to the interested parties for comment. On January 16, 2002 the Panel met further to discuss the case which included comments received from the employer's representative dated January 9, 2002.

Reasons

As the background notes indicate, the claimant slipped and fell on a freshly waxed floor while she was restocking magazines. She landed on her buttocks jarring her spine. Several months following this incident a CT evaluation of the lumbosacral spine revealed a disc protrusion at the L5-S1 level. The claimant continued to experience persistent radicular symptoms and as a consequence the decision was made to proceed with a discectomy. She underwent this surgical procedure on September 21st, 1994. According to the claimant, she did not obtain any significant benefit subsequent to the surgery. In addition, the claimant developed painful feet, which was diagnosed as bilateral metatarsalagia with some plantar fasciitis as well. She has attributed the pain in her feet to her abnormal gait as a result of her back pain. Weight bearing and especially walking increases the pain in her feet.

It was uncertain to us how these foot difficulties were directly related to her back injury and so we arranged for an independent third party examination of the claimant on November 29th, 2001 by a physical medicine and rehabilitation specialist. In arriving at our decision, we attached substantial weight to his opinion. The specialist addressed the causation of the claimant's foot condition as follows:

"It can be difficult to determine causation when a specific diagnosis is not readily available. However, the onset of foot pain began in 1996. The temporal relationship between the workplace injury of 1994 and the onset of foot pain suggests that a direct cause and effect relationship is not medically probable. The mechanism of injury in 1994 is not one that would be expected to result in bilateral foot pain. In my opinion, based on the temporal relationship and mechanism of injury described, a cause and effect relationship between the 1994 workplace injury and the bilateral foot pain is not medically probable.

Within the submitted material there is a suggestion that altered gait due to the low back and leg pain might have been the cause of the bilateral foot pain. The primary care physician was not completely convinced of this relationship, as Ms. [the claimant] was apparently becoming symptomatic in multiple regions in late 1996. In my opinion an indirect cause and effect relationship between the low back injury and the development of foot pain due to an altered gait pattern would be considered a medical possibility and not medically probable. As discussed above there is a very weak temporal relationship and there is no clear evidence of altered gait that would lead to bilaterally similar foot pain."

We find that the worker's foot problems are not, on a balance of probabilities, related to her compensable injury of January 26, 1994.

In addition to his expressing an opinion with respect to the claimant's foot problems, the physical medicine and rehabilitation specialist also commented on a probable diagnosis with regard to the claimant's back condition. He believed that the claimant's lumbosacral and associated right leg pain was probably attributable to perineural fibrosis of the right L5 nerve root with the associated discopathy.

"Perineural fibrosis is an unfortunate consequence that occurs in a small percentage of individuals who have a disc herniation and subsequent surgery. In my opinion, the workplace injury of 1994 is associated with a medically probable temporal relationship and mechanism of injury to result in the lumbosacral disc herniation. In my opinion, it is medically probable that the 1994 injury resulted in enhancement or progression of the L5-S1 discopathy. The surgery performed was a direct result of the documented disc herniation. Therefore, it is my opinion that a medically probable cause and effect relationship exists between the 1994 workplace injury and the diagnosis of right L5 perineural fibrosis."

Certain restrictions were assigned to the claimant as a consequence of the epidural fibrosis of her right L5 nerve root. These restrictions included no lifting greater than 20 pounds, no repetitive bending or twisting and the opportunity to alternate work positions between sitting, standing and walking. The employer forwarded a letter to the claimant dated October 1st, 1996, in which alternate duties respecting her restrictions were outlined. The claimant was to work at these duties for 20 hours per week. According to the employer's evidence, however, "in a December 13, 1996 meeting, Ms. [the claimant] advised the WCB that she would be unable to continue with the return to work plan and this was because of her foot difficulties."

After weighing all of the evidence, we find that the claimant is not totally disabled and that the claimant should, but for the non-compensable foot difficulties, be able to perform the modified duties in accordance with her restrictions. Given the foregoing, we further find that there is no basis to increase the partial wage loss benefits, which she is currently receiving, to full wage loss benefits.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 30th day of January, 2002