The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on February 1, 2006. The panel discussed this appeal following the hearing on February 1, 2006 and again on May 11, 2006.

Issue

Whether or not the worker is entitled to wage loss benefits beyond November 29, 2004.

Decision

That the worker is entitled to wage loss benefits beyond November 29, 2004.

Decision: Unanimous

Background

On March 26, 2004, the worker reported injuries to her lower back, left side and left knee when she slipped on a rug at the entrance to her place of employment, landing on her left side. She did not seek medical attention at the time and continued working her regular shifts until April 17, 2004.

The worker was first treated for her injuries on April 20, 2004 when she was diagnosed by her family physician with mechanical lower back pain. She was referred to a chiropractor who diagnosed her on April 26, 2004 as having a lumbar paraspinal muscle strain. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to the worker commencing April 20, 2004.

In June 2004, the worker's family physician, her chiropractor and a WCB medical advisor recommended a graduated return to modified work duties to avoid deconditioning. The worker declined to participate, saying that she was totally disabled. As a result, her wage loss benefits were suspended effective July 1, 2004.

The worker's claim of total disability was not supported by the objective medical findings. Her family physician felt there was no clinical indication that the worker could not perform her work, with the exception of heavy lifting. In a report dated August 13, 2004, he noted that the findings from a CT scan conducted on July 28, 2004 and other rheumatology screening were normal. Clinical examination revealed some decreased flexion and mild tenderness in the lower lumbar region, however she had normal reflexes and power and there was no focal neurology. He observed that the worker ambulated in and out of the office with no problem and with no antalgic gait. Subjectively, however, the physician noted that the worker stated that she was unable to walk due to severe pain. He referred her to a physical medical rehabilitation specialist.

The worker was seen by another physician on August 30, 2004 who diagnosed mechanical low back pain and prescribed medication, heat and physiotherapy treatments. He stated in his report that the worker was not capable of modified duty work between August 30 and September 30, 2004.

In early September 2004, the worker was treated by a physiotherapist who noted a "high perceived disability". She concluded that the worker "would be suitable for light duty job with frequent position changes", and that she could possibly return to regular work in November. When the worker attended for treatment on September 22, 2004, the physiotherapist was unable to give an exact date of return to work due to what was stated to be the "chronicity of the injury".

The worker was assessed by an orthopaedic specialist at the request of the family physician. In his report of October 7, 2004, the specialist concluded that the worker was suffering from chronic back pain and that she should return to work on October 12, 2004 on a graduated basis. He also noted that the worker's responses to a back pain questionnaire indicated "a rather severe disability which would not be verified on clinical evaluation." He suggested that evidence of a facet joint arthrosis of L5-S1 could be a source of pain.

On October 20, 2004 the worker was assessed by a physical medicine and rehabilitation specialist who reported that the worker "had 18/18 tender points associated with fibromyalgia."

In November 2004 the worker agreed to commence a graduated return to work program and her wage loss benefits were reinstated effective November 8, 2004. She returned to modified work during the period from November 8 to December 29, 2004. She was scheduled to work every second day for one hour per day, and was to increase her time as tolerated. In evidence before this panel the worker advised that she was never able to increase her time beyond 1 ½ hours per shift.

On November 18, 2004, a WCB medical advisor reviewed the file information and concluded that the worker was no longer suffering from her work related injury. He noted that the worker's ongoing discomfort was due to fibromyalgia which was not related to her compensable injury. In arriving at his conclusions he specifically relied upon the report of the physical medicine and rehabilitation specialist dated October 20, 2004. In a letter dated November 30, 2004 the worker was informed by her case manager that wage loss benefits would end effective November 29, 2004 as she was "no longer suffering from this injury and ongoing disability is no longer related to this claim but to an alternate medical condition." In a meeting with the worker on November 23, 2004 the case manager had identified that alternate medical condition as being fibromyalgia. An appeal from that decision was brought on April 28, 2005.

The physical medicine and rehabilitation specialist who had originally noted the "18/18 tender points associated with fibromyalgia" rendered a report on January 27, 2005 in which he confirmed that his primary diagnosis was low back strain. In a report dated March 22, 2005 he concluded that the worker's ongoing pain was "a direct result of her continual pulling and lifting at work." In a further report dated May 11, 2005 he again noted that "the source of the injury seems to be from her fall at work."

On August 12, 2005, Review Office confirmed that the worker was not entitled to wage loss benefits beyond November 29, 2004 as "the worker's ongoing complaints, diagnosed as fibromyalgia, cannot reasonably be associated with the muscular strain injury sustained on March 26, 2004. On September 26, 2005, an appeal from that decision was made to the Appeal Commission and a non-oral file review was arranged. On November 14, 2005, the non-oral file review was adjourned sine die by the appeal panel and an oral hearing was scheduled for February 1, 2006.

Following the oral hearing at which both parties were represented and the worker testified, the appeal panel arranged for the worker to be assessed by an independent physical medicine and rehabilitation consultant on April 12, 2006. The examination report dated April 16, 2006 was forwarded to the interested parties for comment. On May 11, 2006, the panel met to consider the worker's appeal and considered a final submission on behalf of the worker from her worker advisor, dated May 1, 2006.

Reasons

The issue in this appeal is whether the worker is entitled to wage loss benefits beyond November 29, 2004. Subsection 4(1) of The Workers Compensation Act (the "Act") provides for compensation to a worker for personal injury "by accident arising out of and in the course of the employment". Pursuant to this section, the panel must be satisfied that there is a causal connection or relationship between the employment and the injury. Where a compensable injury causes a loss of earning capacity after the day of the accident, the worker is entitled to receive wage loss benefits under section 39 of the Act until the loss of earning capacity ends.

After considering all of the evidence, including the testimony of the worker, the medical evidence, the argument presented at the hearing and the evidence of the independent medical specialist we find that the worker is entitled to wage loss benefits beyond November 29, 2004. The panel is satisfied on a balance of probabilities that the weight of the medical evidence, and in particular the reports from both the worker's treating physician and the independent specialist commissioned by the panel, support the conclusion that the worker's current condition of ongoing non-specific lower back pain is a result of the injury sustained at work on March 26, 2004.

In allowing this appeal the panel specifically finds there to be no evidence that the worker was suffering from fibromyalgia. While the physical medicine and rehabilitation specialist treating the worker had noted on October 20, 2004 that she "had 18/18 tender points associated with fibromyalgia", we note that this was observed only once in the duration of this claim. He did, however, in his reports of January 27, March 22 and May 11, 2005 consistently attribute her ongoing symptoms to a low back strain resulting from the fall sustained at work in March 2004. Further, in a report dated September 12, 2005, which neither the case worker nor the Review Office had the benefit of, he again concluded that the worker was "suffering from lower back pain which became symptomatic after a fall on her back March 26, 2004."

That conclusion was confirmed in the report of the independent physical medicine and rehabilitation consultant dated April 12, 2006. He noted that the worker continues to suffer from non-specific low back pain, and that her symptoms on March 26, 2004 were likely similar in nature. He considered the temporal relationship between the incident on March 26, 2004 and her subsequent symptoms, and concluded that on a balance of probabilities there was a probable cause and effect between her condition and the work related condition of March 2004.

While the panel upholds the worker's entitlement to wage loss benefits beyond November 29, 2004 we observe that the evidence does not support a finding that the worker is experiencing a total loss of earning capacity. In a report dated October 19, 2005 the treating physical medicine and rehabilitation specialist recommended a graduated return to work. The worker complied with that recommendation and returned to a modified work program from November 2, 2005 to December 15, 2005. She submitted a work log to the panel which confirmed that she was gradually able to increase her work shift from 2 hours per day to a maximum of 7 ¾ hours per day by week 6 of a 6 week program. In her testimony before the panel the worker advised that she was able to complete the modified shifts, although she was in "severe pain" when the program was concluded. While she was prepared to continue with her modified duties, she testified that at the conclusion of the program her employer "had no work for me, or otherwise I would still be there." She further advised that she continues to seek alternate employment within her medical restrictions. Given these factors, any wage loss benefits to which the worker is entitled ought to take into account this panel's finding that the worker is not experiencing a total loss of earning capacity.

The appeal is allowed.

Panel Members

K. Dangerfield, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

K. Dangerfield - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 21st day of June, 2006