The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 10, 1999, at the claimant's request. The Panel discussed this appeal on November 10, 1999.

Issue

Whether or not the claimant has recovered from the effects of the September 27, 1994 compensable accident; and

Whether or not the claimant is entitled to payment of wage loss benefits beyond June 28, 1996.

Decision

That the claimant has recovered from the effects of the September 27, 1994 compensable accident; and

That the claimant is not entitled to payment of wage loss benefits beyond June 28, 1996.

Background

On September 27, 1994, the claimant injured her back, hip, groin and right leg when she fell backwards after tripping on a toy. The claimant stated that she was thrown in the air, landing backwards on the backrest of a chair and then rolled over falling into a children’s playhouse. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on September 28, 1994.

During the initial stages of the claim, file documentation revealed that the claimant underwent x-ray examination of the lumbar and cervical spines and was seen by her family physician and an orthopaedic surgeon. In a report dated December 16, 1994, the orthopaedic surgeon was of the opinion that the claimant had some soft tissue injuries to her back and right hip area and there was a psychogenic element present.

On January 20, 1995, a WCB medical advisor said there was no logical explanation for the claimant’s continuing symptoms on a physical basis and that the claimant should return to the workforce as soon as possible. Arrangements were then made for the claimant to undergo a work hardening program under the auspices of the WCB. On July 6, 1995, the therapist reported that the claimant was not yet ready for a work hardening program as she displayed pain behaviors on almost every test. The therapist suggested a functional restoration or conditioning program before the work hardening program could be done.

The claimant was assessed by a WCB medical advisor on August 10, 1995. Following the examination, the medical advisor’s opinion of the claimant’s medical condition was as follows:

• the claimant was suffering from osteoarthritis of the right shoulder which had been aggravated by the compensable accident. Associated with this was a general arm weakness with subacromial bursitis.

• a general muscle injury of the right hip with tender areas on the trochanteric bursa, the medial aspect of the capsule and on palpating the piriformis muscle. Tenderness was also noted on the right ischial tuberosity.

• the claimant had low back pain on hyperextension of the spine associated with extension of the right hip joint. The claimant had definite extensive degenerative changes of the lower lumbar posterior apophyseal joints which was contributing to the limitation of these combined movements.

The medical advisor agreed that the claimant was deconditioned and a functional restoration program was considered appropriate. Physiotherapy to the right shoulder and a visit to the Pain Clinic was also recommended.

In a report dated October 18, 1995, the orthopaedic surgeon commented that the claimant still had aches and pains in the right hip area and right lumbar spine. Examination revealed full range of motion in the right hip but with pain particularly at abduction. The left hip movement was fine and motor power and sensation appeared to be normal. The surgeon felt the claimant’s symptoms may be myofascial in origin but he was unable to demonstrate any specific orthopaedic pathology.

The claimant was assessed by a WCB physical medicine and rehabilitation consultant on March 5, 1996. When examining the lumbosacral spine there were no taut bands identified or referral of pain produced. There was also no specific taut bands or referral of pain produced with palpating over the lateral hip area.

The consultant was of the impression that the claimant’s most prominent ongoing subjective complaints of pain were in the low back and groin on the right side. With regard to the low back, the consultant stated that ongoing restriction with range of motion was most likely related to pre-existing severe posterior apophyseal joint osteoarthritis noted in the lumbosacral spine x-ray dated September 27, 1994. The consultant was uncertain as to the exact cause of the claimant’s persisting right hip and groin area pain and a MRI and bone scan was arranged. File documentation noted that both investigations were considered normal. On June 14, 1996, the consultant recommended that the claimant proceed to a graduated return to work program.

On June 21, 1996, the claimant was advised by primary adjudication that compensation benefits would be paid to June 28, 1996, as it was felt there was no longer a cause and effect relationship between her ongoing symptoms and the compensable injury. On June 25, 1996, the claimant appealed the decision to Review Office.

On August 2, 1996, Review Office determined that the claimant was not totally disabled by reason of the injuries she sustained on September 27, 1994, and that she was not entitled to wage loss benefits beyond June 28, 1996. Review Office obtained the opinion of a WCB orthopaedic specialist on July 18, 1996, who concluded that the claimant had sustained soft tissue injuries. The consultant also noted the normal findings of the MRI and bone scan and that the claimant had extensive degenerative changes in her lower spine which pre-existed her case. The consultant felt that the claimant was not totally disabled.

Review Office summarized that in its opinion the claimant was no longer disabled by reason of the September 27, 1994 compensable accident and that any further difficulty she may be experiencing was a result of a pre-existing condition unrelated to the injury. Review Office indicated that the injury sustained on September 27, 1994, were soft tissue injuries, and that the claimant had recovered from same. In the opinion of Review Office, the claimant may have pain but there did not appear to be a diagnosis for those complaints.

On August 23, 1999, the claimant wrote to the WCB requesting further assistance as she was unable to perform her job duties to full capacity. The claimant advised that she attended a doctor in July and was still having stiffness in the hip area and range of motion in the groin area was still not good. The claimant said she had tenderness on the bone by her knee on the right leg and her doctor felt it was because she developed a new gait because of the pain and as a result of the compensable accident. In a further letter dated September 10, 1999, the claimant indicated she had chronic myofascial pain syndrome.

On November 10, 1999, an Appeal Panel hearing took place at the Appeal Commission to consider the claimant’s appeal. Up-dated medical information was also received from the attending physician dated October 4, 1999.

Reasons

The issue in this appeal is whether or not the claimant has recovered from the effects of the September 27, 1994 compensable event; and whether or not the claimant is entitled to payment of wage loss benefits beyond June 28, 1996.

The relevant subsections of the Workers Compensation Act (the Act) are subsection 39(2) which provides for the duration of wage loss benefits. Relevant WCB policy is Section 44.10.20.10, Pre-existing Conditions.

In determining this appeal, we reviewed all the evidence on file and given at the hearing and find the evidence supports a finding, on a balance of probabilities, that the claimant has recovered from the effects of the September 27, 1994 compensable accident and as such is not entitled to the payment of wage loss benefits beyond June 28, 1996. In arriving at this conclusion we noted the following evidence:

• xrays of the cervical spine taken September 28, 1994 show a slight loss in height of the of the body of C6 and the reversal of the curvature of the cervical spine was present on the examination done on October 27, 1986 and is most likely due to an old injury. A recent injury is not demonstrated;

• in reports dated October 20, and November 3, 1994, the claimant’s attending physician indicates that the claimant’s neck and back were gradually improving but the claimant still reported sharp pain through the right groin to her back with trouble sitting and that problems with the right hip needed further investigation. The attending physician further notes the extensive degenerative changes in the lower lumbar paravertebrals and posterior apophyseal joints;

• the claimant was seen by a consulting orthopaedic surgeon who indicated in a report dated December 16, 1994:

“At this time it is difficult to be sure , but I do not think there is a specific disc lesion. There may be some abnormality in the hip which has not been detected on previous x-rays. In view of this will get new x-rays of the lumbar spine, pelvis and right hip.

My impression is that this lady probably has some soft tissue injuries to her back and right hip area. It is difficult to be certain but I get the impression there may be some psychogenic element as well.”

• the claimant’s file was reviewed by a WCB medical advisor and in a memorandum dated January 20, 1995 the advisor indicated:

there is no logical explanation for the continuation of the claimant’s symptoms (on a physical basis). Note that both attending physician and O/S [orthopaedic surgeon] remark on claimant’s anxiety and psychogenic factors which may well be present.
I think that it is important that the claimant return to the workforce as soon as possible. A reconditioning programme should facilitate this.”

• the file was reviewed by a WCB medical advisor on April 18 and May 25, 1995 when he indicated that the attending physician agreed that a work hardening program would be appropriate with appropriate pain management;

• the claimant was seen by a specialist at a Pain Clinic and in his report of June 20, 1995 the specialist indicated that he had performed needling injection procedures with some relief and that further needling therapy might be indicated, the specialist stated in part:

“Neurological examination of the lower extremities was unremarkable. Range of motion of the lumbar spine was pain free and unremarkable. Palpation revealed several tender spots in the posterior pelvic area and just medial to the greater trochanter.”

We note that the claimant failed to show for a subsequent appointment and did not schedule any follow-up appointments.

• on July 6, 1995 the therapist who assessed the claimant for a work hardening program contacted the WCB and indicated that the claimant was not ready for work hardening. She indicated that at the initial assessment for occupational therapy the claimant had self limited due to pain and exhibited pain behaviours during functional testing which on testing indicated less than full participation. The therapist indicated this may be due to an unidentified impairment, easy fatigue, fear of re-injury or pain, test anxiety or symptom magnification syndrome. The therapist further noted that the claimant failed to show for the second part of the assessment. The therapist recommended a functional restoration or physical re-conditioning programme;

• the claimant was examined by a WCB medical advisor on August 10, 1995 who indicated that the claimant was suffering from osteoathritis of the right shoulder with associated arm weakness and subacromial bursitis aggravated by the injury; a general muscle injury of the right hip with tender areas on the trochanteric bursa, the medial aspect of the capsule and the piriformis muscle with tenderness of the right ischial tuberosity. He indicated that:

“The claimant also has a low back pain on hyperextension of the spine associated with extension of the right hip joint. Claimant has definite extensive degenerative changes of the lower lumbar posterior apophyseal joints which is contributing to the limitation of these combined movements.”

• the medical advisor indicated that the claimant should have physiotherapy to her right shoulder; should be encouraged to return to the Pain Clinic; should have a consistent regimen of treatment while having the physiotherapy and being seen at the Pain Clinic. The medical advisor further indicated that the claimant was deconditioned and should undergo a functional restoration program and while she could not do her pre-accident job could do part-time light duties if available;

• the claimant underwent a back stabilization program without reported benefit so the WCB authorized a lumbar stabilization and right shoulder strengthening program for 6 weeks with a return to work following that time;

• the claimant was seen by the attending orthopaedic surgeon on October 18, 1995 when he states:

“By and large about the same. Some aches and pains in the right hip area and the right lumbar spine. This may be improved over when I last saw her.

On examination she can move with reasonable ease, though she walks somewhat carefully. There is full range of right hip movement, but with some pain particularly at abduction. Left hip movement is fine. Motor power and sensation appear to be normal.

This may be myofascial pain of some kind but I have not been able to demonstrate any specific orthopaedic pathology.”

• the file was subsequently reviewed by the WCB medical advisor who found no reductions in normal range of motion of right and left hip and only complaints of aches and pains and indicates that the claimant should return to work full-time on full duties;

• the claimant was referred by the WCB for a specific assessment of the issue of myofascial pain by a Physical Medicine and Rehabilitation Specialist which had been suggested as a possibility by the orthopaedic surgeon as he could find no orthopaedic pathology;

• the claimant was examined by a WCB specialist in Physical Medicine and Rehabilitation on March 5, 1996 who found tenderness to palpation but no specific areas of taut bands or trigger points or referral of pain. The specialist referred the patient for MRI and bone scan of the right hip to assist with ascertaining a diagnosis he states:

“Regarding the shoulder area complaints, there has been significant improvement in the pain complaints since onset with minimal findings on the current examination. The most prominent ongoing subjective complaints are of the low back and groin on the right.

Regarding the low back, there is ongoing restriction of range of motion with aggravation of pain complaints on range of motion testing including extension is most likely related to the pre-existing apophyseal joint osteoathritis noted in her lumbosacral spine x-ray dated 27/09/94.

Regarding the persisting right hip and groin area pain, I am uncertain as to the exact cause of the pain complaints and restricted range of motion. I am uncertain as well as to the cause of the apparent wide spread area of tenderness to palpation. With the repeat x-rays of the hip being within normal limits, suggests there is no bony source of pain. A soft tissue source of pain related to the injury would have expected to have improved and resolved by this point following the injury.

• a bone scan was performed on April 29, 1996 consisting of a three phase examination of the hips supplemented with spot views of the entire spine and proximal femora. A flow study was added to assist in excluding an inflammatory process. We note both static and flow studies were found to be within normal limits and that the regional bone scan was reported as normal;

• an MRI of the pelvis and right hip was performed on May 10, 1996 which was found to be normal showing:

“ … no significant joint effusion. Both femoral heads demonstrate normal pathology with no MRI evidence for avascular necrosis. No abnormal bursal fluids are evident. The iliopsoas tendon appears intact with no evidence for tendonitis.”

• following receipt of the diagnostic test results the file was reviewed by the Physical Medicine and Rehabilitation specialist on June 14, 1996 who stated:

“ No cause for ongoing pain complaints evident on all our appropriate investigations to date.

- Further testing not indicated at the moment

- Would suggest proceeding to a graduated return to work

- Graduated return to work would act as therapy to facilitate functional recovery.”

• the file was reviewed by the WCB orthopaedic consultant on July 18, 1996 who indicated:

“x-rays of the lumbar spine, repeated x-rays of pelvis and hips, bone scan & MRI are all normal ruling out significant post traumatic injury as a result of C.I. Sept. 27/94.

Attending initial O.S.[orthopaedic surgeon] reported soft tissue injury from which claimant should have fully recovered by this time & in my opinion claimant is not totally disabled preventing work activity.”

• the claimant’s attending physician submitted a narrative report dated October 4, 1999 and we note that the attending physician reported an incident of aggravation of the claimant’s symptoms which was not related to work. We further note that the attending physician indicates that she saw the claimant three times in 1996, once when the claimant’s symptoms had been aggravated by sitting in a non work-related incident and on two other occasions where the primary reason for the visit was unrelated to any alleged consequence of the compensable event but the claimant’s symptoms of back and hip pain were incidentally assessed;

• similarly, the claimant was seen by her attending physician on only two occasions in 1997, once in 1998 and three times in 1999, the primary reason for two visits in 1999 being unrelated to the compensable event but the claimant’s symptoms of back and hip pain were also incidentally assessed;

• we particularly note that at the last visit to her attending physician on file September 14, 1999 the claimant indicated “that her summer was bad.” We note that the claimant does not work in the summer and therefore it appears that her symptoms increased where there was no connection to the work place. On examination the attending physician indicated:

“Her right hip was painful when falling asleep at night. She stated at night, when she was trying to fall asleep, if she turned on her left side she had to drag her other hip over. She also complained of lower back fatigue. She stated she was only able to walk a few blocks…

Examination showed the back to have good range of movement. There was however discomfort in the right S1 joint and this was aggravated by right lateral flexion of her back. There was no pain on straight leg raising aside from tightness in her hamstrings. She did have some vague discomfort in the right lateral hip. She was unable to fully abduct her right hip secondary to pain in the right groin area… . Patient complained of a twitching sensation in her adductor muscles but none was seen on the exam."

In reaching our conclusion that the claimant has recovered from the effects of her compensable injury we note that all diagnostic testing including x-rays of the lumbar spine, pelvis and hips, as well MRI and bone scan of the pelvis and hips rule out any significant findings in relation to the compensable injury of September 27, 1994.

The claimant when assessed by her physicians has continued to present with significant subjective complaints which in our view outweigh the lack of consistent clinical findings. In this regard we note the comments of the orthopaedic surgeon of December 16, 1994 where it was felt that the claimant sustained soft tissue injuries and suggested the presence of a psychogenic element as possibly playing a role in the disability.

We also note when reviewed by a WCB medical advisor in January of 1995 that it was felt that there was no logical explanation for the continuation of the claimant’s physical symptoms. We also note the report from the Pain Clinic of June 20, 1995 which suggests a normal neurological examination of the lower extremities with normal and pain free range of motion of the lumbar spine.

We further note the opinion of the attending orthopaedic surgeon as expressed on October 8, 1998 that he had not demonstrated any orthopaedic pathology and suggested the possibility of myofascial pain. We note the claimant was specifically referred on this issue to a physiatrist who found no evidence of taut bands or trigger points, felt the low back problems were related to the pre-existing conditions, and as to the pain in the right hip and groin, while he was uncertain as to the exact cause felt that any soft tissue pain related to the injury should have resolved. In this regard, the WCB orthopaedic consultant expressed a similar opinion as provided July 18, 1996.

As well the information on the file indicates that the claimant has significant pre-existing conditions as revealed by x-rays performed shortly after the accident.

In a report dated July 23, 1996 the claimant’s attending physician offered her opinion that the definitive diagnosis was chronic myofascial pain, yet offered no rationale or support for this in her report. However as outlined in the evidence, we note that following the WCB discontinuation of benefits, an apparent lack of continuity with respect to medical treatment for a condition which the claimant contends is disabling and related to the original compensable injury which occurred approximately five years ago.

We also note that the attending physician reported an aggravation or worsening of the claimant’s complaints over the summer months when the claimant, due to the nature of her profession, would be laid off. This in our view brings into question the relationship of the claimant’s current complaints to the compensable accident. Therefore the claimant’s appeal is denied.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 18th day of November, 1999