The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker sustained injuries to her lower back and left elbow in March 2002. The worker's wage loss benefits were terminated as of June 2, 2004. The WCB found that the evidence did not support a relationship between the worker's ongoing symptoms and her compensable injury. The worker appealed this decision.

A file review was held on May 31, 2006, at the worker's request.

Issue

Whether or not the worker is entitled to wage loss benefits beyond June 2, 2004.

Decision

That the worker is not entitled to wage loss benefits beyond June 2, 2004.

Decision: Unanimous

Background

On March 4, 2002, the worker reported injuries to her lower back and left elbow when she flipped backwards in the chair she was sitting on and landed with her buttocks on the back of the chair and banged her left elbow on the floor. The worker indicated that she forced herself to continue working until April 7, 2002 and took Tylenol 3 for the pain. She indicated that she had been off work in December 2001 due to pain in her lower back which was not work related.

On April 9, 2002, the worker sought medical treatment from her family physician and was initially diagnosed with mechanical back pain. He later changed the diagnosis to sciatica. The claim for compensation was accepted by the Workers Compensation Board (WCB) and benefits were paid to the worker effective April 6, 2002.

The worker sought treatment from a chiropractor on May 30, 2002. The diagnosis rendered was a lumbar strain superimposed upon degenerative joint disease.

On June 16, 2002, the family physician reported that the worker was last seen on June 13, 2002 and was attending physiotherapy and doing home exercises. The worker's back pain was mostly on her left side and she was taking Tylenol 3, Celebrex and Elavil. The physician noted that a recent MRI scan of the worker's lumbosacral spine and pelvis revealed bilateral facet degenerative changes at L4-L5 and L5-S1.

The case was reviewed on August 2, 2002 by a WCB medical advisor who confirmed the diagnosis of mechanical low back pain. The medical advisor commented that the compensable accident likely aggravated the worker's pre-existing degenerative facet joints.

The worker was assessed by a WCB medical advisor on August 21, 2002, to determine her current status and functional capabilities. It was noted that the worker continued to experience pain despite physiotherapy, chiropractic manipulation, etc. It was opined that the worker had myofascial irritability of her left piriformis and gluteal musculature and that she should continue with her present treatment. A bone scan examination taken on September 5, 2002 revealed no abnormalities.

On December 11, 2002, the worker was examined by a specialist at a pain clinic upon referral by her family physician. The specialist was of the view that the worker's history and physical examination was consistent with "mechanical back pain, with possible facet joint, SI joint, or muscular etiology, and likely a combination."

Follow-up reports from the pain clinic revealed that the worker showed no improvement in her condition with five sessions of dry needling treatments.

As the worker's low back pain continued, she was re-assessed by a WCB medical advisor on March 14, 2003. It was concluded at this time that the worker had signs of soft tissue pain in her left buttock and piriformis regions but that she was capable of modified duties with restrictions for at least a two month period.

On May 20, 2003, a WCB medical advisor reviewed the file information. On a balance of probabilities, the medical advisor concluded that the worker's facet joint problem was likely pre-existing in nature.

Another bone scan examination was carried out on July 7, 2003. There was no evidence of recent compression fracture or other acute bony pathology.

The worker was interviewed by a WCB psychiatric consultant on September 23, 2003 in regard to depression. The consultant thought that the worker's depression was related to her pain condition but was unable to comment on whether the pain condition was related to the workplace injury.

The worker underwent trial facet blocks at the left L5-S1 and L4-5 levels. A rhizotomy was also performed and it produced significant improvement in the worker's low back pain but she continued to experience left buttock pain localized to the region of the ischial tuberosity.

The worker was assessed by a WCB physical medicine and rehabilitation consultant on November 13, 2003. The consultant stated, in part, "Most prominent on the current examination was a diffuse sensitivity to pressure and ongoing sleep dysfunction and tender points present, suggesting fibromyalgia syndrome present. This condition would not be related to employment or to the prior work injury. There is no evidence on the current clinical examination of any lumbosacral nerve-root involvement or any neurologic involvement." The consultant concluded that a graduated return to her regular work duties would act in conditioning the worker.

The worker was advised by her WCB case manager on January 20, 2004 that she was considered to have recovered from her workplace injury and was not entitled to wage loss benefits beyond February 16, 2004. The worker was advised that her mechanism of injury suggested that she sustained an aggravation of some pre-existing degenerative changes and that the WCB examination of November 13, 2003 showed no active myofascial involvement. It was felt that the worker's current symptomotology suggested fibromyalgia syndrome which was not related to employment or any prior work injury.

A report was received from the treating physical medicine and rehabilitation consultant dated February 10, 2004. The consultant reported that the worker's signs and symptoms were characteristic of myofascial pain syndrome. He indicated that previously diagnosed facet arthropathy at L4-5 and L5-S1 levels could be perpetuating factors for the worker's myofascial pain syndrome.

A worker advisor, in a submission dated August 27, 2004, asked the WCB case manager to consider a report from the worker's treating rehabilitation and medicine consultant dated July 28, 2004 in support of the position that the worker's diagnosis and ongoing symptoms were related to her March 4, 2002 accident.

The WCB case manager referred the case back to the WCB's rehabilitation and medicine consultant on November 12, 2004 to review the new medical report and to answer several questions pertinent to the case. The consultant responded that an aggravation occurred (if at all) of the worker's pre-existing condition and that this aggravation revolved by November 13, 2003.

On December 1, 2004, the worker advisor was notified that a review had taken place and that no change would be made to the original decision.

In a submission to Review Office dated January 14, 2005, the worker advisor argued that the worker continued to have pain in her left lower back and left buttock area and had not returned to her pre-accident status. She referred to the opinions expressed by the treating physical medicine and rehabilitation specialist on July 28, 2004 as a basis for her position.

It was determined by Review Office on February 23, 2005 that the worker was entitled to wage loss benefits to June 2, 2004 inclusive and final. Review Office commented that all doctors, including the treating physicians, agreed that the worker's pre-existing degenerative conditions pre-dated her compensable injury and were likely aggravated as a result of the compensable injury. It was consensus medical opinion that the worker's aggravation resolved by October or November 2003. Review Office noted that the worker continued to be disabled due to her myofascial irritability of her left piriformis and gluteal musculature beyond February 16, 2004 but by June 2004, the specialist indicated there were no ongoing symptoms. Therefore, it was concluded that the worker was entitled to benefits to June 2, 2004 inclusive.

Subsequent to Review Office's decision, further medical information was submitted. On January 30, 2006, the worker was advised that a WCB medical advisor reviewed her file and that he did not expect a cause/effect relationship between the workplace injury and her ongoing symptoms. Therefore, no further benefits were payable beyond June 2, 2004.

On February 6, 2006, the worker appealed Review Office's decision of February 23, 2005 and a file review was arranged.

Reasons

Worker's Position

In a letter dated March 14, 2006 attached to the worker's application to appeal, the worker advised that she continues to have ongoing lower spine and left buttock pain due to her workplace injury. She also advised that she is unable to perform her job duties due to ongoing pain to left buttock and lower spine and decreased mobility. She enclosed reports from her treating chiropractor and her family physician in support of her position.

A letter dated January 14, 2005 written on behalf of the worker states that the worker "has been unable to return to her pre-accident employment due to her compensable accident, therefore her loss of earning capacity does continue, and she is entitled to benefits." The letter referred to various medical opinions in support of the submission, including the opinion of a physical medicine and rehabilitation consultant who is treating the worker.

Applicable Legislation

The worker is seeking wage loss benefits after June 2, 2004. Under The Workers Compensation Act (the Act) the worker is entitled to wage loss benefits if she has a loss of earning capacity caused by the workplace injury. In general terms, if the worker is unable to work or suffers a partial loss of income as a result of the workplace injury, wage loss benefits are payable. Applicable provisions include subsections 4(2), 39(1) and 39(2).

For the worker to receive further benefits in this case, the panel must find that the worker's inability to work is caused by her compensable injury.

Analysis

The panel has considered all the relevant information on the worker's claim file and the worker's submission. The panel is unable to reach the conclusion that the worker's symptoms after June 2, 2004 are related to her workplace injury which was initially diagnosed as mechanical back pain.

In making this decision, the panel places significant weight upon the opinion of the WCB physical medicine and rehabilitation consultant. The consultant examined the worker on November 13, 2003. At that time the worker reported that the primary pain present is in the left buttock. The consultant commented that "The mechanism of the fall suggested only minimal trauma and a likely aggravation of some pre-existing degenerative changes…there were likely some facet origin symptoms present, these most likely related to a pre-existing facet degenerative type arthritic involvement."

The WCB physical medicine and rehabilitation consultant reviewed the file approximately one year later. In a memo dated November 12, 2004 the consultant noted that the worker has significant pre-existing degenerative changes and a history of recurrent low back pain. The consultant offered the following opinion:

"On a balance of probabilities only an aggravation occurred (if at all) of the pre-existing condition. This appeared to have resolved by my call-in examination of November 13, 2003. Even the external physical medicine and rehabilitation consultant's narrative report of July 28, 2004 pointed out that "I would have to conclude that she had recovered from her work place accident in relationship to the facet joint symptoms (pre-existing problem) … in September or October 2003.

There is no evidence on the file of enhancement of the claimant's pre-existing condition. Enhancement is the material permanent worsening of a pre-existing condition. This would therefore not be amenable to any form of treatment.

My impression was that an aggravation had occurred and had resolved on a balance of probabilities by the time of my call-in examination (November 13, 2003). Even the external physical medicine and rehabilitation consultant felt that the pre-existing facet joint osteoarthritis increased symptoms related to the work place accident had resolved by September or October 2003. Also that the myofascial pain syndrome postulated had resolved with the treatment by June 2, 2004." (emphasis in original)

The worker had been seen and treated by at least two physical medicine and rehabilitation specialists. The Panel notes the comments of the first specialist included in a report dated July 28, 2004. The specialist opines that the work accident of March 4, 2002 aggravated the worker's pre-existing condition related to facet joint pain. This is consistent with the WCB physical medicine and rehabilitation consultant's opinion. The specialist opines that while the worker had not recovered from the workplace injury by February 16, 2004, that as of June 2, 2004, she would be capable of a graduated return to work. The specialist also notes that "I would have to conclude that she had recovered from her workplace accident in relationship to the facet joint symptoms following the rhizotomy carried out by [pain clinic physician] in September or October 2003."

In relation to the diagnosis of myofascial pain syndrome, the specialist comments "There was no evidence of any myofascial pain syndrome or trigger point in the left piriformis by the time of my last exam on June 2, 2004".

The panel also notes a January 9, 2006 report by the worker's current physical medicine and rehabilitation specialist who comments, in reference to the worker's ongoing left buttock pain, that "It continues to persist and could be related to underlying lumbar facet joint arthropathy or left SI arthropathy." The panel notes that this opinion does not support a work related cause for the worker's current symptoms.

The panel finds, on a balance of probabilities, that the worker is not entitled to wage loss benefits beyond June 2, 2004. The panel finds that the worker's loss of earning capacity after June 2, 2004 is not related to her workplace injury. The evidence does not establish a relationship between the workplace injury and the worker's ongoing symptoms.

The worker's 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 20th day of July, 2006