The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with whether the worker recovered from her workplace injury.

The worker was injured at work on January 23, 2004. She applied to the Workers Compensation Board (WCB) which accepted her claim and provided wage loss and medical aid benefits. In March 2005, the WCB advised the worker that she was considered fit to return to her pre-accident duties and that wage loss benefits would be discontinued. Subsequently, the WCB also advised the worker that she was considered to have recovered from the workplace accident and was not entitled to any further benefits or services. The worker appealed to the Review Office which upheld the decisions. The worker then appealed to the Appeal Commission.

A hearing was held on December 7, 2006, at the request of a worker advisor, acting on behalf of the worker. The panel discussed this appeal following the hearing on December 7, 2006.

Issue

Whether or not the worker is entitled to wage loss benefits beyond March 8, 2005; and

Whether or not the worker is entitled to medical aid beyond August 10, 2005.

Decision

That the worker is not entitled to wage loss benefits beyond March 8, 2005; and

That the worker is not entitled to medical aid beyond August 10, 2005.

Decision: Unanimous

Background

On January 23, 2004, the worker was using her weight to roll her chair over to the right but as the chair didn’t move, she sustained injuries to her low back, left hip and neck when she grabbed the desk to prevent herself from falling.

A doctor’s first report showed that the worker sought medical treatment on January 30, 2004 for pain, tenderness and decreased range of motion in her lumbosacral region. The diagnosis rendered was a back strain and the worker was prescribed rest, ice, medication and physiotherapy treatments.

On February 24, 2004, the physiotherapist outlined subjective complaints of left sacroiliac and buttock pain spreading to the low back. The diagnosis rendered was myofascial pain/strain and mechanical back pain.

After a call-in examination on April 19, 2004, the examining WCB medical advisor stated “the claimant had a twisting and jarring force applied through the pelvis region to the lumbar spine. History and symptoms, as well as clinical examination would suggest that her current pain likely relates to some lower facet dysfunction, and as well, likely left sacroiliac irritation.” There was no evidence of disc or nerve root lesion found at the examination. Recovery period for this type of injury was between six to eight weeks according to the medical advisor.

On April 26, 2004 x-rays revealed mild spurring of the upper four lumbar discs and slight narrowing of the disc at L4-5.

As the worker’s back condition did not improve despite regular physiotherapy treatment, arrangements were made for her to see a WCB physiotherapy consultant on June 7, 2004. Following the assessment, the consultant concluded that the worker had mechanical back pain with left sacroiliac stiffness.

At the suggestion of the WCB physiotherapy consultant, the worker was referred to a chiropractor for treatment regarding her left sacroiliac joint who she saw on July 8, 2004. On August 24, 2004, the chiropractor discharged the worker from treatment as the worker sustained little benefit from the various forms of treatment that were offered.

On September 13, 2004, the treating athletic therapist indicated that the worker was functioning better but her pain complaints remained the same. In his opinion, the worker did not have a disc injury or any neurological symptoms. She was experiencing difficulties with her sacroiliac joint and some pain behavior.

On November 3, 2004, the athletic therapist indicated that the worker had “discal” findings at the L5 area. An MRI or CT examination was recommended to investigate a possible disc injury. He discharged the worker from treatment as there was nothing else he could do. He felt the worker should be capable of returning to her administrative assistant job as long as she was able to move around and take breaks as needed.

The worker was re-examined by the WCB physiotherapy consultant on November 5, 2004. He felt the worker was pain focused (9/10 pain). He noted the worker had improved since June 2004 except for forward flexion. The worker complained of left buttock difficulties.

A December 7, 2004 CT scan of the lumbar spine revealed no abnormalities at L3-L4 or L4-L5. There was a small central disc protrusion noted at L5-S1 with mild compression of the anterior surface of the thecal sac. No root compression or spinal stenosis was identified.

In a February 3, 2005 report, another physician indicated that the worker had significant spasm and tenderness at the left L4-5 region when seen on November 22, 2004. At a follow-up assessment on January 11, 2005, the worker complained of pain which was worse with prolonged sitting and standing and she had pain with slight radiation to her left anterior thigh. The physician noted the results of the CT scan and commented that a small central disc protrusion with mild compression often can create enough problems to give severe pain. A referral to a physical medicine and rehabilitation specialist (physiatrist) was initiated.

On February 18, 2005, the file was reviewed by a WCB medical advisor. Based on the mechanism of injury, the medical advisor diagnosed the worker with a muscle strain to the low back and a possible left sacroiliac strain. He felt the mechanism of injury would not cause a disc lesion. He noted that early x-rays did show some degenerative changes of the lumbar spine. He felt the worker was capable of returning to her pre-accident work with the opportunity to move about on a regular basis.

A report received from a psychologist dated February 21, 2005 showed that the worker was experiencing emotional difficulties and ongoing pain. The provisional diagnosis was an adjustment disorder with mixed anxiety and depression mood and chronic pain.

In a decision dated March 2, 2005, it was determined that the worker was fit to return to her pre-accident office administration work and that wage loss benefits would be paid to March 8, 2005 inclusive and final.

A report was then received from a neurosurgeon dated June 29, 2005 who stated that the worker’s clinical presentation was not suggestive of radiculopathy. He felt the worker’s discomfort originated from the dorsal elements of the spine and that surgical intervention was not warranted.

Video tape surveillance was taken of the worker’s activities on June 17, 18 and 20, 2005.

On July 28, 2005, a WCB medical advisor reviewed the medical information along with the video surveillance. It was his opinion that the worker’s psychological issues were not related to the compensable injury. He said there were no clinical signs to support a radiculopathy which ruled out the disc noted on the CT of being of any clinical significance. He felt the worker was functionally capable of her pre-accident job duties.

In a decision dated August 4, 2005, the worker was advised that in the WCB’s opinion, she had recovered from her compensable low back strain and that she was not entitled to any benefits and services beyond August 10, 2005. It was also the WCB’s position that the worker did not sustain a significant disc injury as a result of her workplace accident.

On December 9, 2005, a worker advisor provided medical evidence from the treating neurosurgeon and submitted that the worker had not recovered from her workplace accident. This new information was then reviewed by a WCB medical advisor at the request of primary adjudication.

On April 28, 2006, the WCB case manager advised the worker that no change would be made to the original decision. He relied on the opinion expressed by the WCB medical advisor that the new medical information did not reveal a specific pathology which could be directly related to the compensable injury. The MRI and CT scan findings confirmed evidence of a pre-existing degenerative disease which was not caused or enhanced by the compensable injury. On May 18, 2006, the worker advisor appealed the decision and the case was forwarded to Review Office.

On June 2, 2006, Review Office determined that the worker had recovered from the effects of the compensable injury by August 10, 2005 and that she was not entitled to wage loss benefits beyond March 8, 2005. Review Office found the worker’s ongoing complaints did not correlate to the MRI findings. It stated that the worker’s contention of severe functional limitations were not borne out by surveillance footage taken of the worker in June 2005 and her ability to go on trips, while still contending to be disabled from her sedentary work duties. In July 2006, the worker advisor appealed Review Office’s decision and a hearing was arranged. She later provided the Appeal Commission with medical information from the treating physiatrist for consideration.

Reasons

Applicable Legislation

The worker is claiming wage loss benefits. Subsection 39(1) provides that wage loss benefits are payable where an injury results in a loss of earning capacity. Subsection 39(2) provides that wage loss benefits are payable until the loss of earning capacity ends, as determined by the board.

The worker is also claiming medical aid. Medical aid payments, such as physician, chiropractor or physiotherapist fees, are payable in accordance with subsection 27(1). The WCB makes these payments where it determines that the symptoms/conditions being treated are caused by the workplace injury.

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 her representative and the panel.

The worker commented on the video surveillance evidence collected by the WCB. She noted that the video of her trip to Kenora did not show her in the vehicle. She stated that for the two hour trip she laid back on a seat cushion which gives off heat and vibrates. Her representative referred the panel to the worker’s rebuttal of the video tape evidence on the claim file.

The worker advised that she had received injections from a back surgeon (neurosurgeon) but that the treatment did not help. She is now seeing a physiatrist who has given her injections which have significantly reduced her pain and resulted in an improvement in flexibility. She attributed her improvement to the treatments she has received from this physician. She advised that she is not seeing any other physicians for her injury and is scheduled to see this physician again in February 2007.

The worker advised that she returned to work with a different employer in June 2006. Initially she worked three days per week and by September found a full-time job where she is currently employed. The worker confirmed that the duties at her current job are similar to her pre-accident position but at the former job she could not leave her desk.

The worker’s representative submitted that the overwhelming objective findings prior to the termination of benefits and after the termination, support a continued relationship between the worker’s low back injury and her left S1 hip/buttock pain. She also submitted that the weight of medical opinion from the specialists and physiotherapist support a continued relationship. She stated it was unjust to terminate benefits on the opinion of a WCB medical advisor who had not examined the worker.

She submitted that the initial diagnosis of the worker’s condition was a strain and that the medical evidence supports that the pathology remains a strain.

Employer’s Position

Although the employer advised it would be represented at the hearing, a representative did not attend and a submission was not received.

Analysis

There were two issues before the panel. The first issue was whether the worker is entitled to wage loss benefits beyond March 8, 2005. For the appeal of this issue to be successful, the panel must find that the worker is suffering a loss of earning capacity as a result of the accident. In other words, the panel must find that the worker was unable to work due to the workplace injury. The panel was not able to make this finding. The panel found that, as of March 8, 2005, the worker was fit to perform her pre-accident employment.

The second issue before the panel was whether the worker is entitled to medical aid beyond August 10, 2005. For the appeal of this issue to be successful, the panel must find that the worker’s symptoms after August 10, 2005, are related to her workplace injury. The panel was not able to make this finding. The panel found that the worker’s symptoms were not related to her workplace injury.

With respect to the first issue, the panel notes that the worker’s pre-accident job involved office work which was primarily sedentary in nature. The panel finds that the worker was fit to return to her pre-accident duties as of March 8, 2005. In reaching this decision the panel relies upon the following:

• notation of a discussion on November 3, 2004 with the worker’s treating physiotherapist which indicates that the worker was fit for work as an admin assistant provided she can move around and take breaks as needed.
  
• examination notes from the WCB physiotherapy consultant dated November 5, 2004 which note that objectively, the worker had improved since the June 7, 2004 examination.
  
• WCB medical advisor opinion noted in a memo dated February 18, 2005 that the worker is capable of returning to pre-accident type of work with the opportunity to get up and move around on a regular basis during the first few weeks of the return to work.

The panel finds, on a balance of probabilities, that the worker’s symptoms as of August 10, 2005 are not related to her 2004 compensable injury, and that the worker is therefore not entitled to medical aid beyond August 10, 2005.

The worker’s appeal is declined.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 1st day of February, 2007