The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on February 15, 2006, 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 September 21, 2001.

Decision

That the worker is not entitled to wage loss benefits beyond September 21, 2001.

Decision: Unanimous

Background

On November 29, 2000, the worker was at a client's residence during the course of her employment as a registered nurse, when the client lost her balance and fell against the worker. According to the worker, her right side was pushed against the corner of a fridge and then against the counter and sink area. When she returned to work the following day, the worker stated that she found her working abilities diminished as she was sore and stiff and had a headache. She did not connect this to the incident. The worker said she completed her 80 hours of work for the two week period. During the weekend her condition deteriorated and she felt stiffness and pain from her neck to her knee area on her right side. She had trouble sleeping due to sore ribs and a bad headache. By December 5, 2000, the worker could no longer stand the pain and attended a chiropractor for treatment.

In a chiropractor's first report dated January 10, 2001, the chiropractor's diagnosis of the worker's medical condition was cervical/thoracic/lumbar strain/sprain and a mild right lateral epicondylitis.

On February 15, 2001, chiropractic treatment was approved by the Workers Compensation Board (WCB) and wage loss benefits were paid to the worker commencing December 1, 2000. Subsequent file information revealed the following:

• April 24, 2001 - a WCB chiropractic examination report indicated that the worker had mild residuals in the cervical region and right shoulder. Her persistent problem was right buttock radicular pain to the calf. There was weakness in the right greater toe. The chiropractor's opinion was that the buttock and leg pain related to right sacroiliac joint dysfunction.
  
  
• June 6, 2001 - the worker's treating chiropractor commented that the worker should be referred to a physiotherapist as chiropractic treatment was not benefiting the worker's condition.
  
  
• June 19, 2001 - a WCB physiotherapy consultant outlined her opinion that the worker exhibited muscular irritability throughout her right upper and lower quadrant which may be compounded by ongoing sleep disturbance. It was recommended that the worker should see a specialist regarding her pain complaints and continue with her current exercise regime and chiropractic care.
  
  
• July 5, 2001 - the employer called the WCB to ascertain the status of the claim. The employer indicated that the worker could be working modified duties at a drug store, etc. doing blood pressures. The employer said she has not been in contact with the worker since the accident. The adjudicator advised the employer to contact the worker and offer her the work.
  
  
• July 12, 2001 - the employer wrote to the worker to indicate that it could supply her with light duties until she was ready to return to full duties. The worker was asked to contact the office as to when she was able to return to work.
  
  
• July 17, 2001 - restrictions were outlined for the worker which included no heavy lifting, sustained/repetitive flexion and up to 45 minutes of sitting, standing and walking.
  
  
• July 23, 2001 - a WCB adjudicator documented that he spoke with the employer on July 20, 2001 and the employer indicated that they did not want the worker back to work until "100%".
  
  
• August 27, 2001 - a pain management specialist reported that the worker had tender spots in her right trapezius, the gluteal muscles, hamstrings and paraspinals on the right. The specialist thought that the worker's sleep disturbance should be treated before any needling treatments commenced. He noted that the worker did not want to take any medications at this time.
  
  
• September 11, 2001 - a WCB medical advisor commented that this claim was prolonged beyond expectation and based on the mechanism of injury, he could not correlate the worker's ongoing complaints.
  
  
• September 17, 2001 - based on the mechanism of injury, length of rehabilitation and recent medical findings, a WCB case manager informed the worker that wage loss benefits would end effective September 21, 2001. It was determined that the worker's current difficulties were not related to the compensable injury of November 29, 2000.
  
  
• September 18, 2001 - the treating chiropractor stated that the worker had developed some myofascial pain involvement.
  
  
• September 18, 2001 - x-rays of the lumbosacral spine revealed no abnormalities.
  
  
• July 18, 2002 - a physical medicine and rehabilitation consultant reported that the worker appeared to have a soft tissue injury to the right shoulder and low back regions. He was unable to comment on whether there was a relationship between the worker's present difficulties and her workplace injury.
  
  
• March 10, 2003 - a worker advisor appealed the case manager's decision of September 17, 2001 to Review Office. Included with his submission was a medical report dated December 8, 2002. It was the worker's contention that she continued to suffer from myofascial pain syndrome in the upper and lower back and that this was related to her compensable injuries.
  
  
• March 26, 2003 - Review Office referred the case back to primary adjudication to consider the new medical information provided by the worker advisor.
  
  May 13, 2003 - the employer's representative indicated that the worker had been offered light duty work in the fall of 2001 but she only wanted to do community care work which was not available at that time. The representative noted that community care was not considered lighter work. It only had more flexible hours. She noted that the employer had all kinds of work available for the worker.
  
  
• May 22, 2003 - a WCB medical advisor outlined his opinion that the current diagnosis was possibly myofascial pain syndrome and abnormal pain reaction. He suggested a referral to the WCB's pain management unit (PMU) for further evaluation and determination as to the feasibility of a pre-existing psychological problem.
  
  
• August 20, 2003 - the worker's treating physician stated that his clinical impression and diagnosis was the same as he described on December 8, 2002, i.e. that the worker suffered from localized myofascial pain syndrome on the right side of her neck and lower back regions.
  
  
• September 28, 2003 - the worker was interviewed by two medical advisors from the WCB's PMU.
  
  
• October 16, 2003 - the PMU found that the worker did not meet the diagnostic criteria for chronic pain syndrome per WCB criteria and did not appear to be experiencing signs and symptoms of a major depression or other mood disorder. However, the PMU noted "Mood and affective difficulties do not appear to be severe, but some of her thinking, although not appearing to be related to thought disorder, does appear to be unusual and there is a possibility that her history has made her psychologically vulnerable to experiencing the unexpectedly longstanding and severe course of her pain, relative to the actual injury."
  
  
• November 6, 2003 - a WCB physical medicine and rehabilitation consultant examined the worker and provided the WCB with his findings and opinion. In part, the consultant stated, "A soft tissue injury due to blunt trauma and contusion related to the fall of the right shoulder, and hip, would be a possibility. However I would not have expected a significant spine injury related to the mechanism. As well, resolution of the soft tissue involvement would have been expected long ago as well. I would not have expected the extended period of total disability to employment from the date of injury, November 29, 2000, without significant recovery reported, now three years post-injury."
  
  
• March 1, 2004 - the worker advised her case manager that her right shoulder causes her pain and it went up into the back of her head and caused headaches. She also had pain down her right hip and buttocks.
  
  
• March 1, 2004 - the employer advised the case manager that she had not spoken to the worker since the fall of September 2001. She noted that the worker was not interested in working at hospitals.
  
  
• March 10, 2004 - the manager, sector services, stated, in part, "given the mechanism of injury and the nature of the initial complaints it is difficult from a medical standpoint to explain why the complaints persist at this late date, especially since this claimant has not worked for years. In fairness to the claimant the WCB will authorize some final Tx [treatment] options (active release Tx and supervised pool instruction) to allow the claimant to resolve the last of her residual symptoms."
  
  
• March 22, 2004 - the manager, sector services, referred the case to the WCB's Service Quality branch as the worker was seeking reinstatement of wage loss benefits retroactive to September 17, 2001. The sector services manager noted that the current issue was whether suitable modified work was offered to the worker and whether the worker removed herself from the opportunity to work such duties by leaving the employment of her employer.
  
  
• April 13, 2004 - a service quality analyst reviewed all the information on file and recommended that the WCB contact the employer to provide copies of any return to work offer or plan that may have been sent to the worker in 2001.
  
  
• April 15, 2004 - the employer submitted statements from two staff members who indicated that the worker was offered facilities as it no longer had community care work and the worker refused.
  
  
• June 3, 2004 - the WCB physical medicine and rehabilitation specialist stated that he could find no patho-anatomic diagnosis to explain the worker's symptoms. He was therefore unable to provide a diagnosis for the worker's subjective complaints of her posterior shoulder and left low back.
  
  
• June 15, 2004 - the manager, sector services, wrote to the worker with his decision. The manager felt that the worker had essentially recovered from the effects of her compensable injury. He noted that there was only a very localized area of residual soft tissue symptom pathology identified at the WCB examination of November 6, 2003. The case manager noted that the physical findings on exam would not preclude the worker from working at her pre-accident occupation.
  
  The case manager also concluded that the employer had extended a valid offer of alternate work to the worker as early as July 2001 which would have left the worker without a loss of earnings. The case manager therefore concluded that the worker had no loss of earning capacity as she could have been working at modified duties. It was felt that the worker had failed to mitigate or minimize the effects of her injury as outlined under Section 22 of The Workers Compensation Act ("the Act") by refusing the alternate work assignment and by not considering a more aggressive treatment modality which could have expeditiously resolved her condition.
  
  
• August 30, 2004 - a chiropractor assessed the worker for suitability of a trial of Active Release Technique Treatment. He concluded that the worker was not a suitable candidate for this treatment as it was a form of deep tissue myofascial release that was typically not helpful for patients with superficial tenderness.
  
  
• February 28, 2005 - the worker wrote to Review Office and outlined her position that she did not agree with the June 15, 2004 decision. At the conclusion of her submission, the worker contended that her symptoms and restrictions prevented her from being able to work beyond September 2001 based on the medical evidence; that the WCB failed to provide her with treatment to resolve her condition; the WCB did not offer her rehabilitation training/education to become employable; the light duty positions offered by the employer were "non-existent"; the employer made misleading and false statements to the WCB; and the WCB was biased in accepting unproven statements from the employer.
  
  
• March 24, 2005 - Review Office concluded that wage loss benefits were not payable beyond September 21, 2001. With regard to modified duties, Review Office stated that the worker had no interest in the employer's offer of employment in a facility as opposed to a care home. "Thus, it would seem logical that if the worker turned down the offer of employment in one of their facilities, a more specific offer would not be made as what would be the point. In other words, if the worker turned down the work that was offered, it would not seem logical for the employer to then go into detail regarding the work in the facility."
  
  Review Office pointed out file evidence which indicated that the compensable incident was not that serious. Review Office felt that whatever is causing the worker's subjective complaints as of September 22, 2001, were not related to the soft tissue injury of November 29, 2000. It felt that a loss of earning capacity did not exist as of September 22, 2001.
  
  
• September 14, 2005 - a worker advisor appealed Review Office's decision to the Appeal Commission on the grounds that the worker continued to have restrictions resulting from her compensable injury which prevented her from being able to return to her pre-injury occupation.
  
  
• February 15, 2006 - a hearing took place at the Appeal Commission.

Reasons

Evidence and Argument at Hearing

The worker attended the hearing with her husband and a worker advisor, who jointly made a presentation on the worker's behalf. The worker answered questions posed by the worker advisor, the employer and the panel.

The employer was represented by a director who made a presentation on its behalf and answered questions posed by the panel.

The worker advisor reviewed the medical evidence and stated that the worker was unable to resume work in September 2001 and remains unable to resume her pre-accident duties. He also discussed the WCB's management of the claim and the significance of a service quality report.

The worker's husband disputed the availability of suitable work. He advised that his research concluded that the employer had no right to offer employment at various facilities. He also concluded that there was no formal return to work offer made by the employer in 2001.

The worker answered questions regarding her symptoms, restrictions, treatment, job duties prior to the injury, attempts at return to work, daily activities, and efforts to find employment.

The worker described her current symptoms and restrictions in these terms:

"Okay. I am still suffering from the effects of my injury. I still have pain radiating from my head to my knee, migraines, headaches, trouble sleeping, fatigue, lack of concentration, sore shoulder and ribs, difficulty breathing, lower back pain, pelvic, groin, hip, thigh and right buttock pain.

I am unable to function normally and have not recovered from the injury.

My restrictions are no heavy lifting, no sustained repetitive flexion, bending, two to twenty minutes standing, walking, sitting, no fast-paced leg movement or running, no standing or sitting on hard surfaces, for example, concrete or tiled floors."

The worker advised that she participates in a daily exercise program that is approximately three hours in the morning, afternoon and evening for a total of eight to nine hours each day. The worker advised that she looked into alternate work. She advised that she checks with friends regarding available positions and also checks the paper and internet. In response to a question she advised that she had applied for only one position and was not the successful candidate. The worker also advised that she attended university and completed a project management course.

The employer advised that they have accommodated light duties for workers with restrictions in healthcare facilities. The employer described the process followed in placing such a worker with restrictions and stated they have done this on WCB claims and auto insurance claims. With regard to the worker's return to work, the employer stated that "…yes, we could have given a job replacement and that's what I stated to [WCB staff]…"

Analysis

This is an appeal by the worker of a Review Office decision that found she was not entitled to wage loss benefits beyond September 21, 2001. Review Office found the worker had recovered from the compensable injury. Review Office found there was no relationship between the worker's ongoing complaints and her compensable injury. The worker's failure to mitigate the effects of her injury was also noted by Review Office.

After considering all the evidence the panel finds, on a balance of probabilities, that the worker is not entitled to wage loss benefits beyond September 21, 2001. The panel finds, on a balance of probabilities, that the worker was still suffering some effects of the injury as of September 21, 2001. The panel notes that the worker was first examined by the treating chiropractor on December 5, 2000 about one week after the accident. At that time the chiropractor noted that the worker could return to regular duties by January 15, 2001. This suggests to the panel that the injury was not significant. The panel also notes that a WCB physical medicine and rehabilitation consultant examined the worker in November 2003 and found "….residual, very localized area of soft tissue symptom pathology…". The panel finds that this pathology is likely related to the worker's workplace injury. The panel finds further that the worker did not have a loss of earning capacity as she was fit for suitable light duties. The panel also finds that suitable employment was available had the worker been willing to work.

Throughout the file and at the hearing, the panel finds that the worker's evidence is inconsistent. One example relates to her description of daily activities. The description provided at the hearing suggests significantly more limitations than the description of daily activity provided to the pain management unit in September 2003. At the same time the worker advised the panel that her medical condition has remained the same. The panel also notes recent over-dramatizations of the original mechanism of injury from the way it was first described on the file.

The panel instead relies upon the observations of the WCB pain management unit. Examination notes dated September 28, 2003 indicate that the worker "…does appear to have some somewhat catastrophic and unusual attitudes and perspectives on what happened to her body. As well, it is notable that her perspective on the injury itself does have a rather dramatic flavour to it…"

The PMU noted further that "Barriers to recovery appear to be guarding and bracing, significant report of pain and disability, a fear of re-injury, deconditioning, and congenital/developmental personality factors." The panel considers that these barriers are non-compensable and are not directly related to the worker's compensable injury.

Regarding the worker's medical status as of September 21, 2001 the panel finds that the worker was fit for light duty employment subject to the restrictions recommended by the WCB physiotherapy consultant on July 17, 2001 of no heavy lifting, no sustained/repetitive flexion, no more than 45 minutes sitting, standing or walking.

At the hearing, there was a significant discussion about the worker's attempts to find employment since her benefits were terminated in September 2001. The panel finds that the worker made minimal efforts to find employment and has failed to mitigate the wage loss consequences of her injury, given the minimal physical findings on file and the panel's findings with regard to her compensable restrictions. The panel notes the worker's general view that there are no light duty nursing positions and for this reason she is seeking retraining assistance. The worker's husband indicated that she is primarily looking for assistance in finding a job, and not formal retraining. The panel notes however that the worker possesses a bachelor of nursing degree and while off work was able to attend at university and successfully complete a project management certificate.

The worker's husband addressed the issue of whether an offer of employment was made to the worker. The panel considered this submission along with the evidence provided by the worker and the employer and concludes that the employer was able to provide suitable light duty employment had the worker been willing to return to work. Instead, the worker sought a record of employment to permit her to obtain benefits from another source. For reasons already noted, the panel places greater weight on the employer's evidence surrounding the availability of light duties and the employer's ability to provide suitable employment. The panel accepts the employer's evidence that it could have provided suitable employment to the worker. The panel is satisfied that had the worker been willing to return to work with the employer in September 2001, she would not have sustained a loss of earning capacity beyond this date. There is therefore no entitlement to wage loss beyond September 21, 2001.

The appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 7th day of April, 2006