Decision #181/06 - Type: Workers Compensation
Preamble
This appeal deals with the relationship between the worker’s ongoing symptoms and workplace injury. The worker was injured in 1998 and his claim for benefits was accepted by the Workers Compensation Board (WCB). The worker’s benefits were terminated as of June 7, 2002 on the basis that there was no relationship between the worker’s ongoing symptoms and his workplace injury. The worker appealed to the Appeal Commission as the WCB would not reinstate benefits.
An appeal panel hearing was held on October 11, 2006, at the request of a worker advisor, acting on behalf of the worker. The panel discussed this appeal following the hearing on October 11, 2006.
Issue
Whether or not the worker is entitled to benefits and services beyond June 7, 2002.Decision
That the worker is not entitled to benefits and services beyond June 7, 2002.Decision: Unanimous
Background
The worker began to experience pain in his low back region on September 2, 1998 while at work. The WCB accepted the claim based on the diagnosis of a lower back strain.
File information revealed that the worker has degenerative disc narrowing with no evidence of a disc herniation.
By July 16, 1999, the WCB determined that the worker had recovered from the effects of his compensable injury and that he was no longer entitled to benefits. This decision was overturned by an appeal panel in a decision dated August 18, 2000. Based on a balance of probabilities, it was determined that there was a cause and effect relationship between the compensable accident and the worker’s ongoing myofascial pain syndrome and therefore he was entitled to benefits beyond July 16, 1999.
In a report dated April 10, 2001, the treating physiatrist outlined his examination of the worker and noted hyperalgesia at the T12 spinal segment and tenderness over the T12-L1 supraspinatus/interspinous ligament. He could not locate any acutely tender trigger points in the right or left quadratus lumborum, gluteus medius, tender fascia lata or lumbar paraspinal muscles. There were tender spots in the left and right lower thoracic ilio-costalis muscles adjacent to the sensitized segments. The physiatrist concluded that gradual but definite improvement had occurred in the worker’s medical condition. He did not feel the worker was ready to return to a job requiring heavy physical labour or awkward positions on a repetitive basis.
The next report from the treating physiatrist was dated August 30, 2001. He stated that the worker still had residual pain complaints across the upper lumbar region especially at the thoraco-lumbar junction. He did not have pain in the lower lumbar, buttock or thigh regions. The physiatrist noted that the worker did not have any trigger points in the quadratus lumborum, gluteus medius or piriformis muscles. There was some local tenderness in the thoracic paraspinals at the thorco-lumbar junction. The worker was instructed to continue with his own self stretching exercises on a long term basis. It was felt that the worker “has reached his maximum improvement with residual symptoms.” This opinion was again expressed by the physiatrist in a further report dated December 4, 2001. He emphasized “…the noted residual symptoms and current physical signs are directly related to ongoing ligamentous and myofascial trigger points. He has had major improvement compared to the findings when I initially started treatment but has not become asymptomatic or returned to full normal functioning.”
On March 12, 2002, the physiatrist reported his examination findings of the worker on January 23, 2002, February 5, 2002 and February 13, 2002. He outlined his opinion that the worker could not return to any type of employment requiring physical labor. The worker was considered capable of completing his retraining program and no further treatments were being scheduled. He noted that the worker responded to trigger point injections and stretch whenever he had a flare up of pain symptoms with muscle dysfunction related to his underlying ligamentous and myofascial trigger points involving the lumbar region.
Following consultation with the WCB’s healthcare services branch, the WCB case manager informed the worker on May 30, 2002 that based on the weight of evidence, his ongoing symptoms were related to his pre-existing degenerative back condition and not to the effects of his compensable injury. As such, he was not entitled to wage loss benefits beyond June 7, 2002.
On October 28, 2002, a worker advisor provided the case manager with a report from the treating physiatrist dated October 8, 2002 for consideration. The treating physiatrist outlined his opinion that the worker’s current ongoing symptoms and objective physical findings were not related to any pre-existing condition at L5-S1.
On May 14, 2003, the worker was examined by a WCB medical advisor and it was found that the worker’s presentation was not suggestive of a discogenic lesion with nerve root involvement and that his presentation was not characteristic of or accounted for on the basis of myofascial pain syndrome. The medical advisor was not able to establish a probable cause and effect relationship between the original workplace accident and the worker’s current presentation. His examination findings did not indicate structural pathology emanating from the original workplace accident on which to impose workplace restrictions on the worker.
In a decision dated June 20, 2003, the worker was advised by his case manager that based on the May 14, 2003 examination findings and the other file information, no change would be made to the decision of May 30, 2002.
Medical reports were then received from an occupational health physician dated February 11, 2004 and February 9, 2005 which supported the worker’s position that he continued to suffer from myofascial pain syndrome.
On May 9, 2006, a worker advisor appealed the WCB’s decision to deny the worker benefits and services beyond June 7, 2002. The worker advisor submitted that the reports from the treating physiatrist and an occupational health physician supported the position that the worker had not recovered from the effects of his compensable injury by June 7, 2002.
In a decision dated June 19, 2006, Review Office confirmed that the worker was not entitled to benefits beyond June 7, 2002. Review Office was unable to establish a relationship between the September 1998 compensable injury which was a musculoligamentous strain injury to the lumbar spine that went on to develop into myofascial pain syndrome and the worker’s complaints after June 7, 2002. On July 5, 2006, the worker advisor appealed Review Office’s decision and an oral hearing was arranged.
Reasons
Applicable Legislation
In this case the worker is seeking wage loss benefits and other services. In general terms, if the worker is unable to work or requires ongoing medical treatment due to a workplace injury, wage loss benefits and other benefits are provided under The Workers Compensation Act (the Act). Applicable provisions include subsections 4(2), 39(1) and 39(2), and 27(1).
Worker’s Position
The worker attended the hearing with a worker advisor who made a submission on the worker’s behalf. The worker answered questions posed by the worker advisor and the panel.
The worker advised that he was unemployed from June 2002 until August 29, 2005 when he found employment with the assistance of a friend. He worked full-time at the new position. He initially worked as a painter but was moved into a position working with pollution control equipment. This position did not usually require bending or twisting. He advised that he became used to pain and could work with it. He later injured his lower back in March 2006 and was receiving WCB benefits at the time of the hearing.
The worker was asked questions regarding medical treatments between 2002 and 2006 and the pain he felt during this period. He advised that he had not seen the treating physiatrist since late summer in 2003. He also advised that he did not receive any treatments from the treating physiatrist after 2002. File information suggests the last treatment was provided on August 2, 2002.
The worker confirmed that he saw an occupational health physician. The worker was not treated by this physician. In July 2005 he saw another physiatrist for lower back pain. This physician did not treat him but referred him to a pain clinic. He received treatment from a pain clinic physician in 2006, after his 2006 workplace injury.
Regarding his condition between 2002 and 2005 the worker advised that the pain was steady although it increased at times.
The worker advisor noted that the worker had previously appealed to the Appeal Commission and that the panel found the worker to be suffering from myofascial pain syndrome. He noted that the previous panel accepted the evidence of the worker’s treating physiatrist. He asked that this panel accept the evidence of the treating physiatrist and referred to various reports provided by the physiatrist, and specifically to the report of October 8, 2002. He stated that the worker’s position is that he had not recovered from the myofascial pain syndrome and that the physiatrist supported this position. He asked the panel to accept the medical explanation provided by the physiatrist which clearly provides that the worker is entitled to wage loss benefits beyond June 7, 2002.
The worker advisor submitted that the WCB’s position that the worker’s ongoing difficulties are due to his pre-existing condition is unsubstantiated. He noted that the treating physiatrist concluded that the ongoing problems are not related to the pre-existing degenerative condition.
The worker advisor asked that the panel consider that the worker would have had difficulty finding employment in June 2002 given his medical restrictions and a language barrier.
Analysis
The panel has been asked to determine whether the worker is entitled to benefits and services beyond June 7, 2002. For the appeal to be successful, the panel must find that the worker continued to suffer the effects of the 1998 workplace injury after June 7, 2002. The panel was not able to make this finding.
The panel notes that on August 18, 2000 a prior panel of the Appeal Commission determined that the worker was entitled to benefits beyond July 16, 1999. The prior panel noted that the worker was not totally disabled but had not fully recovered from the workplace injury. The prior panel attached significant weight to the opinion of the worker’s treating physiatrist that the worker’s symptoms were characteristic of myofascial pain syndrome. The prior panel specifically noted that the worker was receiving treatment for his myofascial pain syndrome at the time of their hearing, and that his treating physiatrist expected “progressive improvement to occur.” Approximately 20 months after the Appeal Commission decision, the WCB determined that it could not find a cause and effect relationship between the worker’s symptoms at that time and the workplace injury.
After considering all the evidence including the evidence and argument presented at the hearing, the panel finds, on a balance of probabilities, that the worker is not entitled to benefits and services beyond June 7, 2002. The panel is unable to relate the worker’s symptoms and complaints after June 7, 2002 to the 1998 workplace injury.
In particular, the panel notes that the prior appeal panel accepted myofascial pain syndrome as the relevant compensable diagnosis in 1999. The worker was treated for myofascial pain and the last treatment was in August 2002, shortly after his benefits were terminated. The panel also notes there are no reports of trigger points from treating physicians since 2002. The lack of treatment and lack of trigger points suggest the myofascial pain was no longer a significant issue.
The panel also notes that in May 2003 a WCB medical advisor examined the worker and commented that the worker’s presentation was not characteristic of myofascial pain syndrome. The panel attaches significant weight to the medical advisor’s opinion and finds that the worker had recovered from myofascial pain syndrome by the time his benefits were terminated in 2002.
Although the worker claims his pain and functional levels were the same from 2002 to 2005, the panel notes that the worker returned to work in August 2005 to a full time position involving physical labour. The panel notes that the worker had not received treatment for his myofascial pain since 2002. This suggests to the panel that the worker’s back problem was not a significant factor affecting the worker’s employment.
The worker’s appeal is declined.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 30th day of November, 2006