The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 2, 2004, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on November 2, 2004 and again on March 2, 2005.

Issue

Whether or not the worker's complaints beyond November 2002 are related to the workplace injury of April 29, 2002; and

Whether or not the worker sustained an accident arising out of and in the course of her employment on February 6, 2003.

Decision

That the worker's complaints beyond November 2002 are related to the workplace injury of April 29, 2002; and

That the worker did not sustain an accident arising out of and in the course of her employment on February 6, 2003.

Decision: Unanimous

Background

The worker worked as a unit assistant at a hospital ward. Her job involved the lifting and moving of patients as well as their transportation on stretchers or wheelchairs.

In May 2002, the worker submitted a claim to the Workers Compensation Board (WCB) for injuries she sustained to her upper and lower back and both shoulders when she pushed a heavy patient in a wheelchair from one hospital to another. A Chiropractor's First Report dated May 6, 2002, diagnosed the worker with a sacroiliac sprain. The worker was then referred to an athletic therapist for a course of treatment. The claim for compensation was accepted on the basis of a lumbosacral sprain and benefits were paid to the worker.

On June 10, 2002, a general practitioner diagnosed the worker with a lumbar muscular strain. Treatment consisted of further physiotherapy and medication.

On July 10, 2002, the chiropractor reported that the worker complained of low back and leg pain along with weakness. He stated that the worker was not back at work and he requested a treatment extension.

On July 16, 2002, an occupational health physician referred the worker to a physical medicine and rehabilitation specialist (physiatrist) for myofascial trigger point injections particularly for the quadratus lumborum and hip rotator abductors.

The worker was examined by both a WCB chiropractic advisor and a physiotherapy consultant on July 23, 2002. Following the assessment, the physiotherapy consultant found that the nature of the worker's injury was a posterior joint facet problem which should have now resolved. In her opinion, there was a significant psychological overlay which made the degree of injury very difficult to ascertain. She felt that there may be some persisting problem in the lower back but it was so heavily masked that the extent was unknown.

On August 27, 2002, the WCB chiropractic advisor recommended that the worker commence a graduated return to work program.

In a report dated October 11, 2002, the treating physiatrist reported that the worker had definite evidence of myofascial pain syndrome with trigger points in the thoracolumbar paraspinal muscles, bilateral quadratus lumborum, tensor fascia lata and gluteus medius muscles. The worker also had ligamentous trigger points at L2-3 and L4-5 with associated spinal segmental sensitization involving L2 and L5 dermatomes, sclerotomes and trigger point activity within the L2 and L5 myotomes. Treatment included trigger point injections.

On November 5, 2002, the physiatrist outlined his examination findings on the dates that he treated the worker between October 8, 2002 and November 5, 2002. The physiatrist stated, in part, "Based on the degree of improvement in regards to symptoms and function as well as the disappearance of previously abnormal objective physical signs, return to full time and regular duties at work would be appropriate." He noted that "it remains to be seen whether she will have any flare ups of pain symptom requiring future treatment."

On November 8, 2002, the occupational health physician stated that the worker had not made much progress in terms of overall pain levels. The worker was frustrated with her lack of progress and support. It was recommended that reconditioning be resumed in conjunction with a return to work duties. The worker returned to full duties on November 11, 2002 and was paid wage loss benefits for the days that she missed work to attend for treatment with the physiatrist.

In December 2002, the worker notified the WCB that she was still having problems with her back and left side of her body. She saw her treating physician with regard to a lower back complaint on January 6, 2003. In February 2003, she alerted the WCB to ongoing problems with her back and the left side of her body. On February 20, 2003 she was treated by her chiropractor for sharp lower back and leg pain.

On February 25, 2003, the treating physician reported that the worker complained of pain and stiffness across the lower back and left sciatica with throbbing pain in her toes. He noted that the worker was capable of modified work with restrictions to avoid heavy lifting and pushing/pulling wheelchairs. In March 2003, the worker advised the WCB that she was told by her doctor to remain off work.

A WCB medical advisor reviewed the file information on March 4, 2003. He stated that he could not relate the worker's current complaints to her compensable injury.

In a decision dated March 7, 2003, the worker was informed of the WCB's position that there was no cause and effect relationship between her recent lower back difficulties and the workplace injury of April 29, 2002.

On April 2, 2003, the worker filed a claim with the WCB for lower back, left leg, neck and left arm difficulties which she attributed to transferring a patient in a stretcher on February 6, 2003 which entailed pushing the stretcher up the tunnel ramps. The worker reported that her injuries had gotten worse by the end of her shift. The worker noted that she had not placed a written report to date as she thought her injury would go under her prior claim. She indicated that she "verbally told" her unit manager of her injuries a couple of weeks after the incident.

On April 15, 2003, the worker advised the WCB that she had been feeling lower back pain, left leg, neck and left arm pain for over a month prior to February 6, 2003. She could not recall any specific incident occurring during this time in which to aggravate her injury. She indicated that on February 6, 2003, the pain increased as she was pushing an overweight patient up a ramp. She said she had to run up a ramp so she could keep the stretcher moving. The worker advised the WCB that she took a couple of weeks off from work in early February because she thought the pain would subside. She worked on February 25, 2003 for four hours but had to stop because the pain was too bad.

A report from the treating chiropractor dated April 16, 2003, showed that the worker was examined on February 20, 2003 for sharp low back and leg pain after "helping lift patient…". The diagnosis rendered was a lumbosacral disc injury. The chiropractor indicated that the worker was disabled from work as a result of her injury.

In a May 7, 2003 memo, it was documented that the worker's witness advised a WCB adjudicator that she and the worker were pushing a stretcher and the worker complained of back pain while doing so. The witness could not recall the worker complaining about back pain prior to this.

In a decision dated May 20, 2003, primary adjudication determined that the information on file did not establish that a workplace injury occurred on February 6, 2003 as she was experiencing pain to the noted areas about one month prior to her injury and that she continued to perform her regular duties after her injury. There was also a delay in seeking medical treatment.

The claimant had a CT scan performed on July 16, 2003. The scan was done from L2 to S1 and showed no evidence of disc herniation, spinal stenosis, thecal sac or nerve root compression at any of the imaged levels.

On December 29, 2003, a worker advisor wrote to the WCB and requested reconsideration of the March 7, 2003 decision. As no new information had been provided by the worker advisor, the WCB determined on February 4, 2004, that no change would be made to the March 7, 2003 decision.

A MRI scan of the cervical spine was done on January 17, 2004. A small to moderate left paracentral disc herniation was noted at C5-6. No significant spinal compression was noted. Compression of the left C6 nerve root was not able to be excluded.

In a submission to Review Office dated April 21, 2004, the worker advisor appealed the May 20, 2003 decision of the WCB which denied responsibility for the February 6, 2003 workplace accident. Based on the evidence provided by the worker, co-worker and treating physiatrist (reports dated April 14 and 18, 2004), the worker advisor outlined his position that an accident had occurred on February 6, 2003 which exacerbated the worker's compensable lower back injury and caused new difficulties in her left shoulder.

With regard to her lower back injury, the worker advisor placed particular emphasis on the April 14, 2004 letter of her treating physiatrist who suggested that "at this point it is highly probable that her present pain condition affecting her lower back is an exacerbation of the original problems treated by Dr. [name excluded] in 2002. The pain is arising from the left quadratus lumborum, gluteus medius and minimus which are the regions largely treated by Dr. [name excluded] in the past."

An MRI scan of the worker's thoracic and lumbosacral spines was performed on June 11, 2004. The scan of the thoracic spine did not identify any evidence of disc protrusion or spinal cord compression. The lumbosacral scan did not provide any evidence of focal disc protrusion or nerve root compression.

In a June 18, 2004 decision, Review Office determined that there was no cause and effect relationship between the incident of February 6, 2003 and the workplace injury of April 29, 2002 and that the February 6, 2003 incident was not acceptable as a workplace injury.

Review Office placed weight on the physiatrist's report of November 5, 2002 which indicated that the worker had resolution of her symptoms and that she could return to full time regular work. Review Office noted that there was no ongoing medical treatment between December 2002 and the February 2003 incident and that the worker continued to perform her regular duties from November 2002 and February 2003. Thus, it was Review Office's opinion that the worker had recovered from her April 2002 workplace accident and that the February 6, 2003 incident was not a recurrence of the April 2002 workplace injury.

With respect to the second decision, Review Office noted that while there was evidence that a co-worker was aware of the worker's complaints of pain due to pushing a patient on a stretcher on February 6, 2003, it did not accept that this act was accountable for the worker's complaints of pain and subsequent time loss from work given that she had been reporting these symptoms for some three months prior to the February incident. The worker did not report the incident to her employer or to the WCB until April 2003, even though she continued to work approximately 10 days following this incident and had numerous discussions with the WCB.

On July 30, 2004, the worker advisor appealed Review Office's decision and an oral hearing was held on November 2, 2004.

During the course of the hearing, the worker testified that the pain in her back continued following her return to work in November 2002 (Transcript, page 15). While her representative suggested that the worker's February 6, 2003 workplace accident exacerbated her injuries, a major thrust of his submissions was that the worker continued to have symptoms following her November 2002 return to work which were related to the workplace injury of April 29, 2002.

The employer's representative took the position that the worker was adequately compensated for her 2002 claim and that she was not entitled to further benefits related to the 2003 claim. In her submission, she suggested there must be some other factor to explain the worker's ongoing pain because the evidence demonstrated that the worker had recovered from the 2002 muscular strain.

The employer's representative noted that "the WCB chiropractor and physiotherapist found a significant psychological overlay which ma[de] the degree of injury very difficult to ascertain". (Transcript, page 21) The representative submitted the worker was experiencing a number of non-compensable barriers in her return to the workplace which had a significant bearing upon the claim.

The employer's representative noted that when the worker did contact the WCB in February 2003, she did not advise the Board of any new injury. Instead, she attributed her difficulties to her April 2002 injury. Particular emphasis was placed on the worker's April 15, 2003 conversation with an adjudicator in which it was noted that the worker had been experiencing pain in her lower back and left leg for over a month prior to February 6, 2003.

It was also noted by the employer's representative that the worker did not seek medical attention from her chiropractor until February 20, 2003 and from her general practitioner until February 24, 2003. The employer's representative also noted that the worker did not inform the employer of a new injury until April 2003.

Following the oral hearing, the Appeal Panel determined that additional information was warranted from three of the worker's treating physicians before rendering its final decisions. A physiatrist's letter dated December 16, 2004 suggested a number of treatments and observed that "it would also be very helpful to explore alternate work scenarios with [the worker] aimed at reducing the exposure to physically demanding work. Input in the way of a psychological consultation regarding strategies around dealing with ongoing pain may also be of some benefit in managing her overall condition."

He concluded "my overall feeling is that the probability that [the worker] will be able to successfully return to her job . . . or to any other job with her present status is very low to nil. This is due largely to the intensity of symptoms, restrictions in activity as well as the prolonged nature of her condition and the level of severity perceived by [the worker]."

On February 3, 2005 a thorough review of the worker's file was provided by her treating family physician who offered the opinion that her ongoing low back and left sciatica were a direct result of her workplace accident of April 29, 2002. He suggested she was totally disabled from the workplace at present and indicated that he was not optimistic about a return to her previous employment.

On February 9, 2005, all interested parties were provided with copies of the medical reports received and were asked to provide final comments. A submission was received by the employer's representative of February 25, 2005 which suggested that the new information should not change the findings on the claim.

On March 2, 2005, the Panel further met to discuss the case.

Reasons

Are the worker's complaints beyond November 2002 related to the workplace injury of April 29, 2002?

In making its finding that the worker's complaints beyond November 2002 are related to the workplace injury of April 29, 2002, the Panel has considered the entirety of the record including the medical reports, the extensive documentation on this file and the oral evidence offered at the hearing.

The Panel notes that there are differing medical opinions on the file as to the relationship between the workplace injury of April 29, 2002 and the complaints beyond November 2002. However, in making its decision, the Panel finds, on a balance of probabilities, that the continuity between the lower back complaints experienced after the return to work suggests that the original injury is still in play.

In making this finding, the Panel notes that at the time the worker returned to work, caution was expressed by both the treating physiatrist in his November 5, 2002 letter and by the occupational health physician in his November 8, 2002 letter. While the treating physiatrist suggested that a return to regular duties would be appropriate, he was alert to the possibility of future "flare ups" of pain symptom that would require treatment. The occupational health physician also noted that not much progress had been made in terms of overall pain levels.

The consistency and regularity of the worker's complaints to the Board and to medical professionals also assists the Panel in its findings on this point. In December 2002, the worker advised the Board of ongoing problems with her back. In early, January, 2003, she saw her family physician with regard to her lower back complaint. In February 2003, she again alerted the Board to her lower back complaint and sought treatment from a chiropractor on February 20, 2003 and from her family physician on February 25, 2003. Similarly, in her April 15, 2003 statement to the Board, the worker advised that she had been feeling lower back pain for much of the month of January. The continuity between the worker's April 29, 2002 injury and her ongoing lower back pain was also noted by the treating physiatrist in his letter of April 14, 2004.

Taking into account the record as a whole and in particular the continuity of lower back complaints after the November, 2002 return to work , the Panel is persuaded, on a balance of probabilities, that the worker's complaints beyond November 2002 are related to the workplace injury of April 29, 2002.

The worker's appeal on this ground is allowed.

Did the worker sustain an accident arising out of and in the course of employment on February 6, 2003?

In finding, on a balance of probabilities, that the worker did not experience an accident arising out of and in the course of her employment on February 6, 2003, the Panel again has considered the entirety of the record including the medical reports, the extensive documentation on this file and the oral evidence offered at the hearing.

In making this finding, the panel notes that there was no contemporaneous report of any incident on February 6, 2003 either to the Board or the employer. As the worker notes in her April 2, 2003 Accident Report, she did not advise her unit manager of any injury until a couple of weeks after the incident. Even when the worker contacted the WCB with regard to her difficulties in February 2003, she did not advise of a new injury. Instead, she attributed her difficulties to her April 2002 injury. Moreover, the worker did not seek immediate medical treatment as a result of any incident on February 6, 2003. She did not see her chiropractor until February 20, 2003 and her family physician until February 24, 2003.

In addition, during her April 15, 2003 conversation with an adjudicator, the worker noted that she had been experiencing pain in her lower back and left leg for over a month prior to February 6, 2003. According to the adjudicator's notes from this interview, the worker did not recall any specific incident happening during this time in which to aggravate her injury although she observed that on February 6, 2003 the pain increased as she was pushing an overweight patient up a ramp.

Given the enduring nature of the worker's complaint prior to February 6, 2003 and the absence of any complaint to the Board, to her supervisor or to her medical caregivers, the Panel finds, on a balance of probabilities, that the worker did not sustain an accident arising out of and in the course of her employment.

The worker's appeal on this ground is denied.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

B. Williams - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 25th day of April, 2005