The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with the causal relationship of the worker's ongoing reported symptomotology to her workplace accident.

On April 7, 2004 the worker suffered a workplace accident. The Workers Compensation Board (the "WCB") accepted the worker's claim on May 4, 2004 and paid benefits until November 4, 2005 at which time it considered the worker to have recovered from the effects of her compensable injury. This position was upheld by the Review Office in a decision dated March 10, 2006.

It is this decision that the worker appealed to the Appeal Commission. An appeal panel hearing was held on July 18, 2006. The worker appeared as did her union representative. No one appeared on behalf of the accident employer though a written submission was provided.

Issue

Whether or not the worker is entitled to wage loss benefits and medical aid beyond November 4, 2005.

Decision

That the worker is not entitled to wage loss benefits and medical aid beyond November 4, 2005.

Decision: Unanimous

Background

Reasons

Background

On April 7, 2004, the worker injured her back when assisting a co-worker move a four drawer lateral filing cabinet. Her description of the mechanism of injury is described in her accident report of April 13, 2004:

"I lifted the end on to the 'wheeler". Another employee steered the wheeler & I held the other end and walked, steering it down the hallway and into the storage room. I walked backwards holding on to the end of the cabinet. I felt a pain in my back but didn't give it much thought…On Thursday morning when I went to get up I couldn't and the pain in my back was terrible. I have been in severe pain since…"

The worker sought medical treatment from her family physician on April 13, 2004. The physician reported that the worker presented with pain in the lower back with some radiation into both buttocks. Straight leg raise (SLR) was considered to be normal. It was indicated that the worker experienced pain with rotation of her spine. It was also said that the worker had a pre-existing condition of palindromic arthralgias. Anti-inflammatory and pain medication were prescribed. An x-ray was performed and the results were interpreted as normal.

The WCB accepted this claim on May 5, 2004 which included responsibility for wage loss benefits and medical aid as well as physiotherapy.

The worker regularly attended her family physician for treatment. Based on the worker's presentation, the physician continued to report that the worker was unfit to return to work. In June 2004, the treating physiotherapist requested the WCB authorize a further four weeks of treatment at a frequency of three visits per week. This request was reviewed by a WCB physiotherapy consultant. The request was denied on June 22, 2004 on the basis that it was felt that there was no evidence that would warrant further treatment. Rather, the WCB was of the view that a home program and/or self pain management techniques would suffice.

By letter dated July 19, 2004, the family physician corresponded with the WCB and expressed the opinion that further physiotherapy was warranted. He advised that the worker remained very symptomatic and that arrangements were being made for her to be assessed by an orthopaedic surgeon.

The case manager further discussed the issue relating to continuing physiotherapy with the WCB physiotherapy consultant. As a result, a call-in physiotherapy assessment was arranged at the WCB with this taking place on September 21, 2004. This assessment revealed moderate to significant limitation of the lumbar range of motion. The neurological examination was reported as being unremarkable. It was further stated that the worker had a significant pre-existing history of femoral fracture with residual leg length discrepancy which was though to be contributory to the current level of disability. Significant sleep disturbance was also reported. It was felt to be reasonable to authorize additional physiotherapy for instruction in stabilization exercise. It was also felt that the worker should be capable of participating in a graduated return to work program. A copy of the WCB physiotherapy consultant's report was provided to the family physician.

The worker was assessed by an orthopaedic surgeon on October 8, 2004. According to the surgeon, he felt that the clinical impression was that of a lumbosacral soft tissue strain with persistent mechanical back pain arising out of presumed degenerative changes in the lower lumbar facet joints. As there was no evidence of radiculopathy or disc herniation, a CT scan was not recommended. Upon review of the September 21, 2004 physiotherapy report, the orthopaedic surgeon commented that the functional findings were consistent with his. He also thought that the restricted lumbar range of motion was of very longstanding origin, perhaps preceding the injury. Given the worker's lack of any significant response to recent physiotherapy treatment, he also thought that she would be a candidate for a home program. The surgeon agreed with a return to work on a graduated basis to the worker's sedentary regular occupation starting at half time.

The WCB pursued a gradual return to work on October 12, 2004, with the family physician. The family physician disagreed with this date but did concede a return to work on a graduated basis commencing November 1, 2004. On November 5, 2004, he prolonged the gradual nature of the return to work by limiting the worker to two hours per day. This was subsequently increased to four hours per day near the end of January 2005.

As the worker continued symptomatic, the family physician arranged for a CT scan which was done on December 14, 2004. The scan was interpreted by the radiologist as showing rather minimal multilevel degenerative changes in the lumbosacral spine.

On January 31, 2005, the family physician wrote to the WCB advising that the worker had made no progress whatsoever. In light of this, the physician indicated that he was only going to allow the worker to continue working four hours per day which she was prepared to do in spite of her increasing pain.

Due to the continuing symptomotology, arrangements were made for the worker to be assessed by a WCB medical advisor on February 23, 2005 and subsequently by a WCB Physical Medicine and Rehabilitation Consultant (physiatrist) on April 28, 2005.

The February 23, 2005 examination notes by the WCB medical advisor record the worker's history of the mechanism of injury as follows:

"She states she lifted the cabinet onto a pallet with her co-worker. The co-worker then steered the pallet and she held the filing cabinet in place as they went down a hallway into the storage room. The [worker] states she then lifted the cabinet off the pallet and twisted her back. She reports experiencing immediate sharp pain at her low back. She states her low back was sore by the end of the day…"

The medical advisor noted that the worker did not perform a home exercise program. Examination revealed inconsistent test results of the range of motion of the hips and no trigger points. The diagnosis was mechanical low back pain. Based on the examination, the WCB medical advisor stated that the worker was able to continue performing her regular work activities at 4 hours per day.

A bone scan performed on April 4, 2005 revealed low-grade activity in the mid lumbar spine consistent with degenerative disease.

On April 28, 2005 the worker was assessed by a WCB physiatry consultant. This time, the worker reported the mechanism of injury as follows:

"…she was doing this with another individual who was at the wheeled end of a trolley and…she, herself, was carrying most of the weight of the cabinet that was tilted towards her. She was walking, bent forward in a crouched position and walking backwards. She reported that she had walked in this position down the hallway, approximately half way down the hallway for 200 ft and then twisted to turn into a room and she felt a sharp pain shoot up her back, in the buttock up the back on the right side…"

The April 28, 2005 assessment by the WCB physiatry consultant suggested a degree of deconditioning of the trunk as well as some weakness in the abdominal muscles and muscle tightness across the hips, quadriceps and hamstrings. It was felt that the deconditioning was contributing to the persistent mechanical symptoms as was the lack of any regular physical fitness activities. The physiatry consultant suggested that the worker gradually increase her fitness activities and with remobilization, that she should be able to progress to full hours at her employment. It was felt that there was no need to impose any restrictions with respect to the current job duties.

Subsequent to the call-in examination by the WCB physiatry consultant, the family physician continued to report the worker's medical status as unchanged and consider the worker fit for only four hours of restricted work per day.

At the case manager's request, the file was once again reviewed by the WCB physiatry consultant on September 14, 2005 with the aim of providing some insight into the causal relationship of the worker's ongoing symptomotolgy to the April 7, 2004 workplace injury. The WCB physiatry consultant thought that based on the mechanism of injury the worker most likely suffered a minor strain. At the time of the call-in examination in April, 2005, the back strain appeared to have resolved with no mechanical irritability. He therefore thought that there was no ongoing cause and effect between the worker's symptoms, her disability from work and her workplace injury. He also thought that her ongoing difficulties might be explained by pre-existing factors such as her apparent lack of motivation for lifestyle changes, overweight status, longstanding musculoskeletal and cardiovascular de-conditioning, prior injuries and early connective tissue disorder.

By letter dated November 3, 2005, the WCB advised the worker that her wage loss and medical aid benefits would cease effective November 4, 2005.

Subsequent to this letter, the treating physician forwarded several letters outlining his disagreement with the WCB's decision to discontinue its responsibility in this matter. On March 10, 2006, Review Office confirmed the case manager's decision to discontinue responsibility for wage loss and medical aid beyond November 4, 2005.

Worker's Position

The worker says that since her April 7, 2004 workplace accident she has never returned to pre-accident status despite taking steps to increase her activity and lose weight. She relies essentially on her family physician's reports supporting her ongoing symptoms.

Her union representative also alleges a breach of The Human Rights Code by the WCB physiatry consultant on the grounds of discrimination on a prohibited ground. He did not however request any remedy under that Act. He explained that the WCB physiatry consultant's comments about the worker's lack of motivation for lifestyle changes implies a very extreme psychological condition which is prejudicial to the worker's case on a prohibited ground of being physically or mentally disabled.

Analysis

To accept the worker's appeal we must find that her ongoing symptomotology is causally related to her workplace injury. We are unable to make that finding.

Despite the inconsistencies in the worker's report of her workplace injury, the diagnosis for her work-related injury is a soft tissue strain. This diagnosis has been confirmed by all the medical practitioners involved in the worker's care.

The examination notes of all medical practitioners after September, 2004 do not reveal any findings consistent with soft tissue strain. Subsequent to this date there are some findings of mechanical back pain up until April 28, 2005 when the WCB physiatry consultant examined her and could not re-produce any.

The worker disagrees with this medical evidence. At the hearing she testified that she can only work 4 hours per day 3 days a week since her accident with great difficulty, whereas prior to the accident she worked 8 hours per day 3 days per week.

She explained that her pain continues despite attempts at exercise and weight loss. This exercise consists in walking one to two blocks for approximately 10 minutes and some swimming (not laps) for about ½ hour.

While we accept that the worker may experience pain, we are unable to link her reports of pain to the April 7, 2004 workplace injury which was relatively minor in nature. In coming to this decision we note the weight of medical evidence does not support ongoing soft tissue strain or mechanical back pain after April 28, 2005.

We therefore find on a balance of probabilities that the worker is not entitled to wage loss benefits and medical aid beyond November 4, 2005.

Accordingly her appeal is denied.

As a final comment, we would like to address the union representative's submission that the WCB physiatry consultant's comments are discriminatory. We do not agree with this submission. We see the comments as an attempt to describe the reason for the worker's ongoing symptomotology. In any event, given our finding that there was no clinical evidence of soft tissue strain or mechanical back pain as of April 28, 2005, the WCB physiatry consultant's September 14, 2005 comments have no bearing on our decision.

Panel Members

L. Martin, Presiding Officer
J. MacKay, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Martin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 14th day of September, 2006