The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 29, 2003, at the claimant's request. The Panel discussed this appeal on April 29, 2003.

Issue

Whether or not the claimant is entitled to payment of wage loss benefits.

Decision

That the claimant is not entitled to payment of wage loss benefits.

Decision: Unanimous

Background

While working as a Licensed Practical Nurse on October 15, 2001, the claimant twisted her lower back when positioning a patient. On January 9, 2002, the claimant was diagnosed with chronic low back pain and sciatica in her right lower limb. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.

In a February 5, 2002 report, an occupational health physician commented that the claimant had had a five year history of myofascial dysfunction in her right gluteus minimus and medius muscles which followed from her original 1998 work injury - - a lifting strain as a healthcare aide. There were taut tender bands located in the right paraspinal muscles in the lumbo-thoracic region. The claimant had a pattern of subacute aggravation which increased when she began working on the D2 ward which involved very heavy lifting. The physician noted that this condition had largely gone unrecognized and untreated and that the recent injury of October 15, 2001 appeared to be in the same areas.

A WCB medical advisor reviewed the case on February 28, 2002 and made the following statements:

• not with certainty, the claimant's lumbosacral strain with myofascial pain appeared to have been present for some time (pre-existing).
  
  
• the October 15^th work injury was considered to be an aggravation of the pre-existing condition. A chronic disc injury was another possibility, although there was no evidence of nerve root compression.
  
  
• the occupational health physician stated that the claimant did not make a full recovery from the low back injury of January 16, 1998. However, on reviewing that file, she appeared to have suffered a lumbosacral strain. The general practitioner's report of February 16, 1998, stated that the claimant had no subjective complaints or objective findings and that the strain had resolved.

The claimant was involved in a motor vehicle accident (MVA) on February 22, 2002. In a report dated April 10, 2002, the attending physician described his examination findings pertaining to the claimant's neck, thoracic spine, right shoulder, lumbar spine and right buttock. The physician stated that the injuries sustained in the MVA would delay the claimant's recovery from her compensable injury by 3 to 4 months.

A CT scan assessment was performed on April 19, 2002. The results showed moderate diffuse posterior disc bulging at L4-L5 and that there was no focal disc protrusion identified.

The claimant started a graduated return to work program with restrictions on May 21, 2002.

On June 13, 2002, a physical medicine and rehabilitation specialist provided the WCB with reports dated February 8, 2002, February 22, 2002, March 8, 2002 and April 19, 2002, which outlined his examination findings and treatment of the claimant. On April 19, 2002, the specialist noted that the claimant had showed a slight improvement in her right buttock pain and that her lower back and neck were still tender. The claimant had significantly sensitized segments at T12, L3 and S1.

On June 20, 2002, a WCB case manager advised the claimant that her case had been reviewed by a WCB medical advisor and that he was of the following opinion:

• that the claimant sustained a lumbar low back strain as a result of the October 15^th work injury which aggravated her pre-existing condition of myofascial dysfunction which was not considered to be related to either her October 15, 2001 work injury or her workplace accident of January 16, 1998.
  
  
• that there was no longer a cause and effect relationship between the workplace injury of October 15, 2001 and her current signs and symptoms.
  
  
• that any restrictions to employment are considered to be related to the claimant's pre-existing, non-compensable condition, and the effects of the February 22, 2002 MVA.

The case manager determined that the claimant sustained a muscular injury as a result of her October 15, 2001 work place accident and that based on the weight of evidence, history of injury, diagnosis, etc. that the claimant had recovered from her work related injury. It was also determined that the claimant's pre-existing condition of myofascial dysfunction was unrelated to either of her workplace back injuries. The case manager concluded, based on Sections 39(1) and 39(2) of The Workers Compensation Act (the Act) that wage loss benefits would be paid to June 28, 2002, inclusive and final. On June 28, 2002, the claimant disagreed with the case manager's decision and the case was forwarded on appeal to Review Office.

Prior to considering the claimant's appeal, Review Office requested additional information be obtained from the treating general practitioner, the occupational health physician and from the rehabilitation medicine specialist. On September 27, 2002, Review Office arranged for the claimant to be assessed by a WCB physical medicine and rehabilitation consultant. The referral was made because of the difference in medical opinion between the claimant's attending physicians and WCB medical advisors as to the diagnosis of myofascial pain and its relationship to this claim and to the 1998 claim. This examination later took place on October 31, 2002.

In a decision dated November 22, 2002, Review Office determined that the claimant had recovered from the effects of her accident by June 28, 2002. It noted that the claimant's recovery was complicated because of a non-work related MVA which delayed the claimant's recovery from her compensable injury by three or four months. Review Office was of the opinion that the WCB was not responsible for this three or four month extension of the claimant's recovery time period.

Review Office further indicated that the examination conducted by the WCB's consultant revealed inconsistencies and that the claimant's responses to various medical tests during the exam showed non-anatomical responses that could not be attributed to any physical injury sustained in the accident. The claimant was therefore not entitled to payment of benefits beyond June 28, 2002.

Review Office also considered the opinion expressed by the WCB consultant that this accident aggravated some prior myofascial soft tissue difficulties. Review Office believed, however, that the claimant had been compensated for this aggravation through payment of benefits from October 2001 to June 28, 2002. On January 20, 2003, the claimant appealed Review Office's decision and an oral hearing was held on April 29, 2003.

Reasons

On January 16^th, 1998, the claimant injured her lower back while lifting a patient out of bed. This injury resulted in the claimant's missing 34 days of work. The treating physician's progress report of February 16^th, 1998 indicated that the claimant's bilateral lumbar muscle strain had completely resolved. The claimant presented with full range of back flexion motion and no more lumbar tenderness.

The claimant again injured her lower back on October 15^th, 2001 while turning a patient. The accepted diagnosis was left and right lumbar muscle strain. The claimant received 13 physiotherapy treatments, which ended on February 6^th, 2002. The treating physical medicine and rehabilitation specialist suggested that the claimant would now benefit from a trial of needling/infiltration of various trigger points. Shortly following this recommendation the claimant was placed in a gradual back to work program for three hours a day. However, the program was short-lived as she suffered a non-work related motor vehicle accident on February 22^nd, 2002. In a letter to the WCB dated April 10^th, 2002, the claimant's attending physician provided the following comments concerning the accident:
     "Therefore, to finally answer your question as to the effect of the MVA [motor vehicle accident] injuries on Ms. [the claimant's] recovery from her compensable low back injury, I would say that it will considerably delay recovery of her WCB injury by at (sic) 3-4 months- in my opinion."

A WCB physical medicine and rehabilitation consultant examined the claimant on October 31st, 2002. In his examination notes, the consultant discussed the results of prior investigations as well as his own examination findings:
     "As well, a number of assessments including orthopaedic surgeon, general practitioners, physical medicine rehabilitation, as well a number of investigations including CT scan of the lumbosacral spine, bone scan and x-ray. The investigations have not identified any significant structural abnormality. The investigations suggesting (sic) normal bony and ligamentous integrity of the lumbosacral spine. Specifically there appears to be lumbosacral range of motion currently within normal limits. When indirectly tested there was no evidence of any neurologic abnormality in the lower extremity. There was no evidence of any significant functional impairment in performance of a number of actions including gait, a variety of lower extremity movements, back movements, transitional movements appeared to be good, when distracted."

After thoroughly considering the evidence as a whole, we find certainly by the time of the foregoing examination that there were no continued signs of any aggravation relating to the compensable injury and that on a balance of probabilities the effects of the compensable injury had also resolved. Accordingly, the claimant is not entitled to payment of wage loss benefits and her appeal is hereby dismissed.

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 4th day of June, 2003