Public Decisions | The Appeal Commission

Decision #93/99 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on June 14, 1999, at the request of the claimant. The Panel discussed this appeal on June 14, 1999.

Issue

Whether responsibility should be accepted for the claimant's time loss from work between April 6, 1998 and July 31, 1998 (approximately 24 business days) as being related to the compensable injuries sustained on January 23, 1997.

Decision

That responsibility should be accepted for the claimant's time loss from work between April 6, 1998 and July 31, 1998 excluding vacation days in early June, as being related to the compensable injuries sustained on January 23, 1997.

Background

While employed as a housekeeping services supervisor on January 23, 1997, the claimant was in the process of setting up a meeting when she leaned on a table with her left hand and the table tipped. The claimant then fell with the table and felt a sharp pain in her lower left back. Initial medical information reported an acute neck and upper back strain and left arm strain. Initial file documentation also revealed that the claimant underwent several non-compensable surgeries prior to the 1997 accident.

Subsequent to the accident, the claimant underwent chiropractic and physiotherapy treatments. When examined by a medical advisor at the Workers Compensation Board (WCB) on May 9, 1997, the examination was consistent with a muscular strain of the lower and upper back. The medical advisor commented that the claimant's recovery had been prolonged due to lack of muscle tone in the abdominal wall secondary to surgery and a lack of strength of the trunk. Recommendations were made for the claimant to undergo a trunk stabilization program.

The claimant began a graduated return to work program on June 23, 1997, which was interrupted by surgery on July 16, 1997. The surgery involved the application of Marlex mesh for improved abdominal wall contour. The surgery and recovery time was accepted by the WCB as related to the mechanism of injury sustained on January 23, 1997. Two other surgeries performed at the same time were not considered related to the compensable injury.

On October 30, 1997, the claimant was assessed by a physical medicine and rehabilitation specialist at the request of the family physician. The specialist indicated that the claimant had symptoms and signs characteristic of multiple muscle involvement in the left thoracic and lumbar paraspinal, left quadratus lumborum, left gluteus medius and left piriformis muscles.

The claimant was assessed by another physical medicine and rehabilitation specialist on November 5, 1997, at the request of the WCB. The specialist was of the impression that the claimant's symptoms were suggestive of a musculoligamentous strain, primarily a muscular strain to the upper and lower spine with some scapular and buttock muscle involvement.

On December 12, 1997, a WCB medical advisor reviewed the case at the request of primary adjudication. He was of the opinion that adequate time and treatment had been provided to allow recovery from a muscular strain and myofascial pain. The medical advisor stated that the reports which were obtained from both treating specialists indicated that a return to regular duties was anticipated. The medical advisor believed that the claimant was fit to return to regular duties in 2 to 3 weeks time. If the claimant was unable to do so it was not related to her work injuries.

On January 6, 1998, primary adjudication notified the claimant that wage loss benefits would be provided to January 9, 1998, as the evidence no longer supported a direct cause and effect relationship between the original compensable injury diagnosed as muscular strains, and the current situation. It was the opinion of Claims Services that any time loss or treatment incurred beyond January 9, 1998, was not, on a balance of probabilities, directly related to the workplace injury, but likely to other non-compensable issues.

The Review Office considered the case on February 18, 1998, following receipt of an appeal from the claimant. The Review Office extended wage loss benefits to February 10, 1998 on the following basis:

the reports from the treating specialists whose findings of the claimant were consistent with ongoing musculoligamentous strain injury and evidence of related, multiple muscle, myofascial pain syndrome.
the treating rehabilitation medicine specialist initiated a trigger point treatment program and had indicated that a graduated return to work would be considered once the trigger points had been eradicated.
the claimant's report that she remained under the care of the treating rehabilitation medicine specialist while attending physiotherapy twice weekly. The claimant noticed an improvement in her symptoms and had returned to modified work duties.

Subsequent to the Review Office's decision, medical reports were obtained from the treating physical medicine and rehabilitation specialist dated February 24, 1998, and April 8, 1998. In summary, the specialist stated that the claimant responded well to trigger point treatment and had successfully returned to work.

On May 12, 1998, the claimant contacted the WCB claiming further difficulties in relation to the compensable injury. On June 9, 1998, the claimant spoke with a WCB field representative indicating that she was about 55% pain free in terms of pain affecting her lower back and buttock when she returned to work on February 9, 1998. The claimant clarified her job duties, outlined medical treatment dates, provided details regarding two motor vehicle accidents she was involved in, and advised that she started back at the gym 3-4 times a week. The claimant indicated there had been no new accidents to account for her ongoing problems since returning to work in February 1998. The claimant felt her current problems were related to the compensable injury as she had never had any problems with her back or buttock before. File documentation later showed that the claimant was claiming for time loss for the following dates: April 6 & 7, May 7, 1998, six days in June 1998 and July 1,2,3, and 16-31, 1998, inclusive.

Medical information was received from the family physician dated July 17, 1998. The physician indicated that the claimant suffered severe aggravation of her WCB related injuries due to excessive walking at work. The physician's diagnosis was exacerbation of lower back pain, SI strain and myofascial pain syndrome. On August 11, 1998, the rehabilitation medicine specialist reported his examination findings of June 24, 1998, July 3, 1998, and July 10, 1998.

On October 23, 1998, primary adjudication referred the case to a WCB medical advisor for his comments regarding a number of questions. The medical advisor responded as follows:

the current diagnosis based on information was likely mechanical low back pain.
medical evidence did not support a cause and effect relationship between the current diagnosis and the original compensable injury.
the prognosis was that - "recovery is anticipated". The medical advisor stated that mechanical low back pain was multifactorial and related to age, general health status, general conditioning, psychological factors, etc.
the medical advisor did not believe that ongoing treatment would be related to the injury of January 23, 1997.

On December 11, 1998, primary adjudication wrote to the claimant indicating that no responsibility could be accepted for time loss from work commencing April 1998. Primary adjudication referred to the WCB medical advisor's opinion that mechanical low back pain caused the recent time loss from work. It was also noted that the claimant had demonstrated a good functional recovery from the myofascial pain sustained at the time she returned to her regular duties in early 1998. This decision was appealed by the claimant in a letter dated December 20, 1998.

On February 12, 1999, the Review Office determined that no responsibility would be assumed for time loss from work between April 6, 1998 and July 31, 1998 (a total of 24 business days) as related to the injuries sustained by the claimant on January 23, 1997. The rationale used by Review Office was that it could not find that the claimant's problems were a result of the compensable injury. There was no substantiation medically that the claimant's present difficulties were a direct result of the injuries sustained on January 23, 1997. Review Office acknowledged that the claimant did have concerns and may have been incapacitated from her work activities between April 6 and July 31, 1998, but also it did not accept that the problem was a result of the injuries sustained.

On June 14, 1999, an oral hearing was conducted at the Appeal Commission to consider the claimant's appeal with regard to the Review Office's decision of February 12, 1999. It should be noted that at the hearing the claimant amended the number of days for which she was claiming benefits to exclude her vacation days in early June.

Reasons

The issue in this appeal is whether or not responsibility should be accepted for the claimant's time loss from work between April 6, 1998 and July 31, 1998 (excluding vacation days in early June) as being related to the compensable injuries sustained on January 23, 1997.

The relevant subsections of the Workers Compensation Act (the Act) are subsection 4(1) which provides for compensation for personal injury by accident arising out of and in the course of employment and subsection 39(2) which provides for the duration of wage loss benefits. Relevant Workers Compensation Board (WCB) policy is Section 44.10.20.50, Recurring Effects of Injuries.

We reviewed all the evidence on file and given at the hearing and we find that the weight of the evidence, on a balance of probabilities, supports a finding that the claimant's ongoing problems between April 6, 1998 to July 31, 1998 were related to the compensable injury of January 23, 1997 and therefore the claimant is entitled to benefits for the days claimed excluding the days indicated above which were vacation. We placed weight on the following evidence:

the claimant was examined on October 30, 1997 by an attending physical medicine and rehabilitation specialist who indicated that the claimant had symptoms and signs of multiple myofascial pain syndrome; that prolonged sitting and prolonged walking would be expected to aggravate the claimant's symptoms and that a treatment program of trigger point needling was initiated. The specialist indicated:
the claimant was seen for an independent medical examination on November 5, 1997 by a physical medicine and rehabilitation specialist who indicated in a report dated November 12, 1997:
in reports dated November 11, 1997 and December 13, 1997 the claimant's attending physician indicated respectively:
in a report dated February 24, 1998 the attending physical medicine and rehabilitation specialist indicated that the claimant was improving with treatment but could not return to her regular job and that the main problem related to long distance walking on a regular basis every day;
in a report dated April 8, 1998 the attending physical medicine and rehabilitation specialist indicated that he had last seen the claimant on March 27, 1998 and that she had responded well to the treatment program and had returned to work full time with good function despite some residual myofascial trigger points causing some restriction in the lumbar spine range of motion;
in a report dated August 11, 1998 the attending physical medicine and rehabilitation specialist indicated he had examined the claimant on June 24, 1998. He indicated that the claimant had returned to work but in May 1998 had developed increased discomfort in her neck and back as prolonged walking had essentially aggravated her lower back and left buttock. He further indicated that the claimant had attended a chiropractor for about five visits but did not improve and that her attending physician had increased the claimant's dosage of anti-inflammatory medication around May 14, 1998. The specialist subsequently examined and treated the claimant on July 3 and 10, 1998 with trigger point needling;
the claimant was seen by her attending physician on July 31, 1998 who indicated the claimant had symptoms but was improving with physiotherapy and could return to work August 4, 1998. The physician noted that:

Based on the above evidence we find that the claimant had residual symptoms which were exacerbated by a significant amount of walking on her return to work causing a recurrence of symptoms related to her compensable injury of January 23, 1997, which would entitle her to benefits and services for the days claimed during the period April 6, 1998 to July 31, 1998 excluding the vacation days as noted. Therefore the claimant's appeal is allowed.

We note that the claimant has indicated that she has been reassigned on a permanent basis by her employer and that she has not experienced any further problems since her return to work August 4, 1998.

We also note the comments of a WCB medical advisor on October 23, 1998 where the advisor indicated that the claimant had a good functional recovery as evidenced by her return to work and that recovery was anticipated. We concur with the medical advisor's comments that mechanical low back pain is multi-factorial and related to age, general health status, general conditioning and psychological factors. The medical advisor's comments are supported by the claimant's evidence given at the hearing with respect to her current functional status. It is our view, therefore, on a balance of probabilities, that the claimant had recovered from the effects of her January 23, 1997, compensable injury on her return to work in August 1998 and that any ongoing restrictions would not be related to the compensable event of January 23, 1997.

From the file documentation and evidence given at the hearing we are of the impression that there may be unresolved labour relation issues between the claimant and her employer over which we have no jurisdiction. We have addressed the claimant's entitlement to benefits and have based our conclusion on the weight of the medical evidence as outlined.

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 21st day of June, 1999

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