Decision #68/06 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on January 12, 2006, at the request of an advocate, acting on behalf of the worker. The Panel discussed this appeal on January 12, 2006 and again on April 12, 2006.Issue
Whether or not the worker is entitled to wage loss benefits and coverage for treatment beyond October 18, 2004.Decision
That the worker is entitled to wage loss benefits from October 18, 2004 to January 25, 2005 and coverage for certain treatments beyond this date.Decision: Unanimous
Background
During the course of her employment activities as a shipper/receiver on April 9, 2003, the worker experienced a sharp pain in her left shoulder which later spread to her lower back and left hip. Initial medical reports diagnosed the worker with a lumbosacral and a cervical-thoracic strain. On July 14, 2003, a WCB chiropractic consultant diagnosed the worker with mechanical spinal injury with myofascial involvement of the cervical and shoulder girdle muscles.On July 30, 2003, it was determined by the WCB that the worker was capable of light duty desk work starting at four hours per day. The worker attempted modified duties on two occasions but experienced increasing pain.
On October 1, 2003, a WCB medical advisor examined the worker and found that her ongoing symptoms were related to the compensable injury. She stated that the worker developed chronic muscular pain. The medical advisor believed that the worker was still capable of working 4 hours per day on modified duties.
On October 20, 2003, the worker underwent a CT scan of the cervical and lumbar spines. Central disc protrusions were questioned at the C5-6 and C6-7 regions due to a streak artifact. The images at C7-T1 were non diagnostic. The lumbar spine revealed a left paracentral disc herniation at the L5-S1 level. There was no evidence of central spinal stenosis.
The worker was assessed by a physical medicine and rehabilitation specialist on November 3, 2003. The worker was found to have a lot of tightness of the muscles rather than any active trigger points. Once the worker felt there was an improvement in her mobility, the specialist recommended that she increase her work hours from 4 hours to 5 hours for a week and then to 6, 7 and 8 hours every week.
In a report dated December 22, 2003, the treating neurologist opined that the worker's clinical picture was consistent with myofascial pain syndrome. In a further report dated February 12, 2004, the neurologist reported that a recent MRI of the cervical spine revealed mild degenerative changes but nothing of great significance.
Between January and June 2004, the worker continued with her modified return to work program and eventually returned to full shifts. She did, however, complain of ongoing difficulties with headaches, neck, right shoulder and lower back pain.
On June 29, 2004, the family physician provided the WCB with a narrative report outlining his examination findings of the worker from November 5, 2003 to June 4, 2004. He concluded that the worker's symptoms, physical exam findings and imaging studies pointed to a diagnosis of myofascial pain. This diagnosis was confirmed by a sports medicine specialist in a report dated June 23, 2004.
In a decision dated July 28, 2004, the worker was advised of the WCB's position that she had sufficiently recovered from her compensable injury. This decision was rendered based on the opinion expressed by a WCB medical advisor on July 27, 2004.
Subsequently, the WCB received medical reports from a clinical psychologist dated August 20, 2004 and September 9, 2004, and from a specialist in pain management dated August 24, 2004.
In a decision dated October 18, 2004, the case manager noted that the worker was seeking medical treatment for cervical and lumbar spine complaints but the WCB was of the view, based on a balance of probabilities, that the worker's ongoing complaints were not related to her compensable injury.
On March 10, 2005, a worker advisor presented information to Review Office to support his position that the worker was entitled to the following benefits due to the cumulative effects of all her compensable injuries:
- wage loss benefits on either a partial or full time basis from June 3, 2004 onward;
- full wage loss benefits from October 28, 2004; and
- costs associated with medication, massage therapy, and treatment by the pain specialist and psychologist.
In a decision dated May 4, 2005, a WCB case manager concluded, "Given the mechanism of injury in 2003 your diagnosis was a soft tissue injury and should have long resolved itself. …based on the medical information that had been provided throughout your 2003 claim you still should have been able to work full hours full duties, therefore we would not accept responsibility for any lost time from work."
The letter also indicated that the WCB would not accept responsibility for any psychological condition as the treating psychologist did not provide any psychological diagnosis. The case manager based her decision on the opinion expressed by a WCB medical advisor on May 2, 2005.
On June 23, 2005, Review Office considered the file information which included further information that was submitted by the worker on May 13 and May 27, 2005. Review Office determined that the worker had not made a full recovery from her compensable injuries by June 3, 2004 and was entitled to partial wage loss benefits to October 18, 2004.
Review Office felt that the worker had recovered from the physical effects of her compensable injury by October 18, 2004 and that she was not entitled to wage loss benefits or coverage for treatment beyond this date. Review Office did not accept that the worker continued to suffer from her 2003 work injury or from the cumulative effects of her 2001 and 2003 work injuries. Review Office based this opinion on the lack of objective clinical signs and diagnostic evidence to suggest that the worker's 2001 or 2003 injuries were more significant than soft tissue in nature. The worker argued that she had myofascial pain but Review Office noted there were no active trigger points or objective findings to support a diagnosis of regional myofascial pain syndrome in the areas of the compensable injuries.
In August 2005, the worker's advocate appealed Review Office's decision regarding the worker's entitlement to benefits based on the 2003 injury and a hearing was arranged.
Following the hearing on January 12, 2006, the appeal panel asked for additional information from two of the worker's treating physicians prior to rendering its final decision. Later, all interested parties were provided with the information that the panel requested and were asked to provide comment. On April 12, 2006, the panel met to discuss the case further and rendered its final decision.
Reasons
The issue before the panel was whether the worker is entitled to wage loss benefits and coverage for treatment beyond October 18, 2004. With respect to the claim for wage loss benefits, for the appeal to succeed the panel must find that the worker's workplace injury continued to prevent her from working. The panel did find that the worker's time loss from work after October 18, 2004 up to January 25, 2005 was caused by her workplace injury.The worker has also asked that coverage for treatments be provided beyond October 18, 2004. The panel finds that the worker had not recovered by October 18, 2004 and is entitled to medical aid benefits until January 25, 2005 subject to exceptions noted later in this decision.
Information on the claim file suggests the worker ceased working on October 27, 2004. Payment of wage loss benefits should be adjusted to reflect any hours that the worker received wages for beyond October 18, 2004.
Evidence and Argument at Hearing
The worker attended the hearing with an advocate who made a presentation on the worker's behalf. The worker answered questions posed by the panel.
The employer declined to participate in the hearing but advised the Appeal Commission, by letter, that throughout the worker's recovery, it provided modified duties and flexible hours and is willing to continue to provide flexible, modified duties to help the worker return to work.
The worker's representative reviewed the medical information on the claim file and noted that six physicians diagnosed the worker's condition as myofascial pain syndrome. He submitted that the worker had not recovered from the workplace injury by October 18, 2004 and that she has still not recovered. He noted that the worker is seeking approximately eight months of retroactive wage loss and past and continuing costs of treatments and medications.
The worker described the workplace accident, her symptoms, and treatments. She described her current condition as a five or six out of ten (with 10 being bad). One year ago she said it would be beyond ten. She attributed her improvement to taking time off work, not returning to her pre-accident employment, and a new job with no lifting and bending. She advised the panel that she found a new job in June 2005. The worker advised that she suffered from anxiety attacks after the accident but no longer suffers such attacks. She advised that she received assistance from a psychologist.
Analysis
The panel has considered all the evidence, including the evidence and argument submitted at the hearing. The panel finds on a balance of probabilities that the worker continued to have a loss of earning capacity due to the workplace injury until January 25, 2005. The panel also finds that the worker is entitled to medical aid coverage.
The panel notes that in January 2006 the worker was examined by a physical medicine and rehabilitation specialist who reports that he was able to produce some classical referral patterns and commented that there is some myofascial pain underlying her pain complex, albeit unclear if primary or secondary. The panel notes that two different physical medicine and rehabilitation specialists had not found evidence of myofascial pain syndrome in earlier examinations. The panel is unable to attach weight to this physician's recent findings which are made almost three years after the injury occurred and after the worker was away from the accident employment for a significant period.
The panel relies upon the report provided by the pain management specialist and the athletic therapist dated January 30, 2005. The panel notes that the worker was last seen by the pain management specialist on January 11, 2005 and by the athletic therapist on January 25, 2005. The report notes that the worker was discharged from care and comments "With the improvements that have already been made, it is anticipated the claimant will continue to improve once the program set out for her is performed regularly as intended. Strength and flexibility increases can take some time to improve and continuation of the home program is important to continued improvement."
The panel finds that the worker was fit to return to work as of the date of the final therapy treatment, January 25, 2005. The panel also finds that the worker is not entitled to medical aid after January 25, 2005 except for the psychologist's services which are addressed later in this decision and the medication prescribed by the pain management specialist.
The panel also notes that the worker has utilized the services of a psychologist. The WCB agreed to pay for a limited number of treatments. The psychologist reported in September 2004 that the worker was "…suffering from significant somatic discomfort secondary to the reported injury."
At the hearing the worker advised that due to her injury she had anxiety attacks and that the anxiety attacks ceased six or seven months after she left her accident employment (October 27, 2004). The psychologist confirmed in her February 23, 2006 report that the worker's panic disorder had abated and that panic episodes had diminished. The panel finds that responsibility for psychological services should be accepted until May 2005 which is approximately the time that the worker's anxiety attacks related to the injury ceased.
The worker's appeal is allowed in part.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 18th day of May, 2006