Decision #141/05 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on July 13, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.Issue
Whether or not the worker is entitled to wage loss benefits beyond February 14, 2003.Decision
That the worker is entitled to wage loss benefits beyond February 14, 2003.Decision: Unanimous
Background
While employed as a parioperative aide on February 28, 2002, the worker injured her lower, middle and upper back when turning a patient into the supine position. Initial medical reports diagnosed the worker with mechanical back pain and acute low back pain. The Workers Compensation Board (WCB) accepted the claim and benefits were paid to the worker commencing March 1, 2002.X-rays of the cervical spine dated March 15, 2002 revealed minor degenerative changes at the C5 and 6 discs and the dorsal spine revealed no abnormalities. X-rays of the lumbosacral spine demonstrated minor scoliosis convex to the left. There was slight loss of height of the L1 vertebral body with sclerosis inferiorly and small anterior osteophytes which were considered most likely to be the result of an old injury. The intervertebral disc spaces were satisfactorily maintained.
On March 27, 2002, the worker advised the WCB that she had been involved in a couple of motor vehicle accidents wherein she previously had injured her spine. The last accident happened in 1991. The worker noted that her back pain had not changed since the date of her recent injury and her back muscles were still very tight.
The WCB received ongoing progress reports from the treating physician and physiotherapist. A graduated return to work program was implemented on May 6, 2002 but the worker developed pain and the program was cut back to 2 hours at three times per week. On June 6, 2002, the treating physician commented that the worker still had occasional stiffness but felt better. A WCB call in examination was suggested.
On July 3, 2002, a WCB medical advisor reviewed the file information at the request of a WCB case manager. The medical advisor thought that the worker may have aggravated her pre-existing degenerative disease as a result of the February 2002 accident. The medical advisor felt that the worker's extensive pre-existing condition in her cervical and lumbar spines was affecting her recovery.
A report was received from an occupational health physician dated July 9, 2002 concerning his examination of the worker on July 5, 2002. The specialist noted that the worker was making slow progress and that he was reluctant to increase her activities or hours until she had better exercise tolerance. He stated that the worker continued to have tightness and restrictions in her back extensor musculature. If the worker's problems continued, trigger point injection therapy was recommended as a form of treatment.
On August 8, 2002, both a WCB physiotherapy consultant and a WCB medical advisor assessed the worker. This examination revealed that the worker presented with left sacroiliac joint dysfunction and a sacroiliac belt was recommended. Both consultants were unable to relate the worker's left knee and associated numbness over the dorsum of the left foot to the compensable injury. They felt that once the worker obtained the sacroiliac belt she could increase her working hours to five hours a day.
On September 11, 2002, while moving beds when short staffed, the worker claimed that she incurred a hernia condition as a result. It was later determined that the hernia was a strain injury.
Reports were received from the worker's treating physiotherapist dated September 11, 2002 and October 21, 2002. Reports were also obtained from the treating physician indicating that the worker still complained of lower back pain.
On December 17, 2002, the worker underwent a CT scan of the lumbar spine. Mild to moderate diffuse posterior disc bulging was noted at L4-L5 and approached the adjacent dural sac and both L5 nerve roots. Clinical correlation was required. No other significant abnormalities had been identified.
On January 21, 2003, a WCB orthopaedic consultant examined the worker. In his opinion, the worker sustained a strain of her lower back in the lifting injury of February 28, 2002. The examination demonstrated major symptom amplification, inappropriate pain behaviour and evidence of pain focus. There was no evidence of a continuing orthopaedic, organic diagnosis which could explain the worker's apparent severe pain and inability to return to work. He stated there were no workplace restrictions arising out of the injury of this claim.
In a decision dated January 30, 2003, the case manager advised the worker that wage loss benefits would be paid to February 14, 2003 inclusive and final as it was determined that the worker no longer required restrictions related to her compensable injury.
Subsequent medical information was submitted from an occupational health physician dated February 4, 2003 and from an orthopaedic specialist dated February 18, 2003. On March 4, 2003, a case manager advised the worker that the new medical information still pointed to the degenerative changes in her back rather than a compensable issue. The worker was advised to continue to pursue long term disability and to look for another job at her place of employment.
On December 7, 2004, a worker advisor, acting on behalf of the worker, advanced the argument that the worker continued to have a loss of earning capacity based on medical evidence provided by the occupational health physician on February 4, 2003. The worker advisor noted that the worker had remained off work until November 2003 when she was able to return to full time work at lighter duties. The worker advisor submitted that the worker was entitled to further benefits.
Prior to considering the appeal, the case manager referred the file to the WCB orthopaedic consultant who had previously examined the worker. He was asked to comment on whether or not there were clinical findings to support the diagnosis of myofascial pain as outlined by the occupational health physician and whether there was a cause and effect relationship between the diagnosis and the compensable injury. A response dated January 6, 2005 from the orthopaedic consultant advised that the compensable diagnosis was a lumbosacral strain and that the occupational health physician reported involvement of the worker's right buttock musculature, her coccyx, the ischial tubersity, etc. The consultant said he was unable to identify a relationship between these findings and the compensable injury.
On January 6, 2005, a WCB physiatrist agreed with the WCB orthopaedic consultant's opinion of January 6, 2005. The physiatrist indicated that he could find no apparent patho-anatomic diagnosis to account for the worker's claimed subjective soft tissue complaints.
On January 7, 2005, the case manager decided that there would be no change to the WCB's decision of January 30, 2003. The letter stated; "The diagnosis of the work injury was a low back strain. The medical information supplied notes involvement of the right buttock, coccyx, ischial tuberosity and groin. It is my opinion that a cause and effect relationship has not been established between these complaints and Ms. [the worker's] February 2, 2002 work injury."
On February 15, 2005, a worker advisor appealed the case manager's decision to Review Office. Based on the reports prepared by the occupational health physician and treating physiotherapist, the worker advisor contended that the worker's ongoing back symptoms were related to the February 2002 compensable injury and that the worker was entitled to wage loss and treatment for her back condition from February 13, 2003 until November 2003.
In a March 15, 2005 decision, Review Office determined that there was no entitlement to payment of wage loss benefits beyond February 14, 2003. Review Office stated that an external orthopaedic consultant, a WCB orthopaedic consultant and a WCB physiatrist all indicated that the worker's compensable injury had resolved by February 14, 2003. The evidence against this conclusion comes primarily from the occupational medicine physician who has found myofascial pain in multiple sites and not just in the lower back area where the worker sustained a lumbar strain or sprain. Review Office concluded that the worker was not entitled to benefits beyond February 14, 2003.
In April 2005, the worker advisor appealed Review Office's decision of March 15, 2005 and an oral hearing was requested.
Reasons
As a consequence of her February 28, 2002 compensable accident, the worker sustained what was diagnosed as an acute low back strain. The preponderance of evidence confirms that the worker's original compensable diagnosis was still in play at the time her benefits were discontinued on February 14, 2003. In reaching this conclusion, we attached considerable weight to the following evidence:- February 4, 2003 examination of worker by her treating occupational and environmental medicine specialist. The specialist recorded these findings: "There is a lot of tenderness in gluteal and deep hip rotator muscles around the ischial tuberosity in the adjacent soft tissues particularly towards the coccyx. By my assessment she has considerable myofascial involvement in the right hip region with gluteus minimus, piriformis, iliacus and thigh adductor muscles. Gluteus minimus and piriformis seem to be most responsible for her lower leg symptoms and iliacus responsible for the right anterior thigh. She has been off her return to work program since September when this flare-up occurred and with no treatment instituted which is a big oversight. I agree her problems are not related to her CT Scan findings of a disc bulge, but she has extensive myofascial and muscle strains as noted."
- February 18, 2003 examination of worker by her treating orthopaedic surgeon, who recorded these findings and comments: "She has features compatible with spinal disc degeneration at multiple levels and recurrent chronic muscular ligamentous back strain. Since she is a person of small build, I would not expect her to do heavy work and very heavy work as defined in Canadian Dictionary of Occupational Titles. I prescribed a very soft lady's sacroiliac type corset. She should be encouraged to return to gainful work that is within her limitations."
The evidence confirms that the worker had a strong desire to get back to work, but not to the strenuous duties that she had been performing in the operating room. The worker through the assistance of her union and her employer engaged in an active exercise to find a less physically demanding position for her. Fortunately, this search was successful and the worker ultimately returned to full time employment in November 2003 at her previous pre-accident wage scale.
We find that the worker is entitled to wage loss benefits beyond February 14, 2003. Accordingly, the worker's appeal is hereby allowed.
Panel Members
R. W. MacNeil, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
R.W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 31st day of August, 2005