The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on July 10, 2007, at the request of a worker advisor, acting on behalf of the worker. The panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to compensation benefits and services beyond May 24, 2006.

Decision

That the worker is entitled to compensation benefits and services beyond May 24, 2006.

Decision: Unanimous

Background

On April 10, 2003, the worker was lifting a box that weighed between 20 and 50 pounds into his car when he experienced a sharp pain in his back, hip and groin region. He immediately sought medical attention and was diagnosed with a low back strain with left sciatica. X-rays were taken and were reported as being normal.

Following an examination by a WCB chiropractic consultant on July 8, 2003, it was felt the worker suffered a mild strain/sprain injury of his lumbosacral spine and possibly the left gluteal musculature. He felt the worker overly focused on his lumbosacral discomfort. The consultant recommended that the worker could return to light duty work for a two week period and then back to his regular duties.

On July 14, 2003, the worker was advised of the WCB’s decision that he was fit to return to his regular duties by July 23, 2003. The worker did not return to his regular work duties on July 23, 2003 as he felt he wasn’t ready and further that he was unable to lift a ladder.

Subsequent medical reports show that an orthopaedic specialist arranged for the worker to undergo a CT scan of the lumbar spine on September 22, 2003. It showed that the worker had no significant disc herniation or protrusion at the levels of L1-L2, L2-L3 and L3-L4 and L5-S1. At L4-L5 level, there was mild diffuse annular bulging with no evidence for central canal or neural foraminal stenosis.

In a report dated November 4, 2003, the orthopaedic specialist commented that given the near normal findings of the CT scan and the worker’s good recovery from severe low back sprain, he could resume some light work fairly soon.

In a decision dated November 13, 2003, the case manager informed the worker that the report from the orthopaedic specialist had been reviewed by a senior medical advisor and a chiropractic consultant. It was felt that the orthopaedic specialist’s exam findings were very limited to support further time loss from work and that the CT scan of September 18, 2003 revealed near normal findings. Therefore, it was still the WCB’s position that the worker was fit to return to his regular duties by July 23, 2003.

In early January 2004, a worker advisor provided the WCB with reports from the treating orthopaedic specialist, a physical medical specialist and an occupational health physician to support her position that the worker had not fully recovered from his compensable injury and had current workplace restrictions. On March 24, 2004, the WCB case manager informed the worker advisor that the new information had been reviewed by a WCB orthopaedic consultant and it was still the WCB’s position that the workplace injury of April 10, 2003 resulted in a soft tissue low back strain which had resolved and there was no specific diagnosis of an ongoing condition preventing the worker from returning to work.

The worker advisor provided the WCB with a May 17, 2004 medical report from the physical medicine specialist for consideration. Following a review of the report by a WCB orthopaedic consultant, the decision rendered on March 24, 2004 was confirmed.

On July 9, 2004, the worker advisor requested a Medical Review Panel (MRP) based on a difference of medical opinion between the worker’s physician and the WCB’s physician. The request for an MRP was granted and took place on December 3, 2005. The MRP indicated that the most probable diagnosis of the worker’s workplace injury was a strain of the soft tissue structures about the left hip and that the diagnosis was consistent with the mechanism of injury. It was noted that:

“The early medical reports illustrate a changing picture in the description of the physical findings and lack of significant progress in recovery. This changing picture is consistent with injury to multiple structures and accounts for the difference in opinion with respect to the diagnosis by various examining health care professionals over a period of time starting immediately after the injury.”

The MRP was of the opinion that there was considerable historical and physical exam evidence that the worker continued to suffer from the effects of the workplace injury beyond July 2003 and that he was presently fit for sedentary work only. Based on the MRP’s findings and opinion, the WCB paid the worker wage loss benefits retroactive to July 24, 2003. The WCB also arranged for the worker to return to work with the accident employer to a sedentary position commencing February 24, 2005.

The worker underwent a bone scan evaluation on July 21, 2005. The results stated “Abnormalities are present in the left sacroiliac joint inferiorly and in the left proximal tibia. Both areas warrant radiological correlation.”

An MRI of the lumbar spine dated August 2, 2005 revealed a mild left lateral disc prominence at L3-4 and a minor central posterior disc protrusion at L4-5. At L5-S1 there was a minor central posterior disc protrusion with no spinal stenosis or neural foraminal narrowing.

On August 22, 2005, x-rays of the sacroiliac joints revealed “…some mild reactive sclerotic change at the inferior aspect of the left SI joint, thought to be degenerative in nature.”

In a September 13, 2005 report, a physical medicine and rehabilitation specialist stated the worker presented with a fairly diffuse pain complaint affecting the left lower quadrant including the lower thoracic, lumbosacral and lower limb. Arrangements were made for the worker to undergo a sacroiliac joint injection on November 8, 2005 and an MRI of the left hip.

An MRI of the left hip and SI joints taken October 31, 2005 was read as being normal.

On December 4, 2005, the physical medicine and rehabilitation specialist noted that the worker was doing well with a significant decrease in his symptoms from the last time he was seen. Based on his improvement, the specialist recommended against pursuing any other invasive procedures at this point.

In a further report dated February 8, 2006, the physical medicine and rehabilitation specialist noted that the worker’s symptoms had partially returned and he was feeling left buttock and thigh pain. A repeat injection to the left sacroiliac joint was arranged.

The worker was interviewed at the WCB’s Pain Management Unit (PMU) on March 1, 2006. Based on this assessment, it was determined that the worker did not meet the diagnostic criteria for a chronic pain syndrome or any Axis I or Axis II disorder.

The worker was examined by a WCB physical medicine and rehabilitation consultant on May 18, 2006. The consultant noted that the worker reported persisting symptoms of the left low buttock and back area since the accident. He noted that the current examination had a number of inconsistencies with no physical or pathoanatomical diagnosis identified to explain the worker’s current subjective complaints. There was no evidence of a soft tissue origin for the symptomatology. He concluded that the worker had likely recovered, on a balance of probabilities, from the effects of his work related incident. He felt there were no structural or other contraindications for the worker returning back to his prior work duties without the need for restrictions.

In May 2006, discussions took place between the WCB case manager, the worker and the employer regarding a graduated return to work plan for the worker designed to increase his strength and endurance so that he could return to his pre-accident duties. During the meeting, the worker indicated that he was not comfortable with the proposed plan as he would not be able to attempt activities such as carrying a ladder, crawling, lifting, etc.

On May 30, 2006, the case manager determined that based on the available file information, the WCB considered him to be fully recovered from the effects of his work related injury of April 10, 2003. As the worker elected not to participate in the graduated return to work program, the WCB would not accept responsibility for his claim beyond May 24, 2006.

In November 2006, the worker advisor provided the WCB with an October 22, 2006 report from the worker’s physical medicine and rehabilitation specialist in support of her position that the worker had not recovered from the effects of his compensable accident and was entitled to benefits beyond May 24, 2006.

The worker’s physical medicine and rehabilitation specialist was of the opinion that the worker was unable to return to his full duties because of the ongoing pain experienced in the left back and hindquarter. His specific diagnosis was lower back strain, pelvic ligament strain, myofascial pain in his back and left hindquarter, and chronic musculoskeletal pain.

The worker’s physical medicine and rehabilitation specialist made reference to the report of the WCB physical medicine and rehabilitation consultant on May 18, 2006. He noted that the WCB physical medicine and rehabilitation consultant’s finding of pain were “consistent with pain of soft issue origin and are noted in the examinations of essentially all who have examined him.” He went on to note:

“I feel that it is in the taut bands found in the multiple muscles of the lower back and left hindquarters that the problem arise… It is the condition of the soft tissues around the joints that create the problem. The taut bands in quadratus lumborum, psoas, tensor fascia lata, gluteus minimus, gluteus medius, pectineus, medial hamstrings, adductor muscle group...and gastrocnemius essentially shorten the left side of his back and left lower extremity length.”

He expressed the view that:

“Movement which would be expected to normally occur with normal joints is restricted considerably by the tightness of the soft tissues. The back and lower left extremity in this case are prevented from reaching full range by the taut muscle bands. Once stretched beyond the available length (before reaching the expected full range of motion), pain is initiated within the affected muscle. As pain is generated, the motion is further reduced and essentially there is contracture of the soft tissues in an effort to prevent moving into the painful range… Static positions such as prolonged sitting can also increase the pain levels by demanding more contraction than the postural muscles can support. As they fatigue, they contract harder reducing the supply of blood to the muscle. This reduces the amount of glucose and oxygen getting to the muscles resulting in increasing muscle pain and spasm which lasts for hours.”

In his view, the worker had ongoing and chronic pain as a result of a soft tissue injury to the posterior elements as a result of his work place incident of April 2003. He identified a number of restrictions for the worker including no lifting of more than 15 pounds and no climbing ladders and no repetitively bending, reaching or twisting.

On December 27, 2006, the WCB case manager stated that he considered the October 22, 2006 report but did not feel there was any new objective medical findings to warrant a change in his decision of May 30, 2006. On January 8, 2007, the worker advisor appealed the decision to Review Office.

On March 12, 2007, Review Office confirmed that there was no entitlement to compensation benefits and services beyond May 24, 2006. Review Office found that the diagnosis of the worker’s diffuse symptomatology was unknown. It stated that even thought the worker has not worked at his pre-accident position since April 2003 and had many treatment modalities, he continued to report ongoing and increasing pain symptoms and a wider distribution of symptomatology with no known cause. Review Office thought there was insufficient medical or other evidence to conclude, on a balance of probabilities, that the worker suffered a loss of earning capacity as a direct result of his compensable soft tissue strain incurred on April 10, 2003. On May 8, 2007, the worker advisor appealed Review Office’s decision and a hearing was arranged.

The hearing took place on July 10, 2007. In her submission, the worker advisor argued that:

“[The worker's] current symptomology and physical findings beyond May 24, 2006 from [the worker's physical medicine and rehabilitation specialist’s] report has been consistent with a wealth of previous medical opinions from specialists and including a previous Review Officer's decision which supported a continuum of findings in support of a relationship to [the worker's] compensable accident.”

The worker advisor pointed to a continuity of evidence on physical findings, dating back to 2003. She placed emphasis on the January 21, 2004 findings of the occupational health physician:

“...with left leg straight, he has stretch discomfort behind the knee and greater left sided lumbosacral pain... On palpitating the low back there is definite hypertonous and increased fullness in the paraspinal muscles from L3-S1. Examined in supine and side lying positions, other sites of prominent muscle tenderness included proximal fibres of the left quadratus lumborum, left abdominal side wall above the hip, left iliacus and dpsoas muscles. Palpitations at these sites caused involuntary guarding… In the medial thigh the adductor magnus and longus were moderately tender, the former causing pain referral into the deep rectal area.”

Reliance was also placed on the reports of the worker’s physical medicine and rehabilitation specialist. In terms of the report of the WCB physical medicine and rehabilitation consultant, the worker advisor noted that it confirmed the physical findings of other physicians. In her view, the examination showed that the worker continues to suffer the effects of the compensable accident of April 10, 2003.

During the course of the hearing, the employer’s representatives were asked if they wished to comment on any of the medical evidence before the Panel. The employer indicated that it was relying on the Board’s medical opinion and the opinion provided to the Board by outside medical providers.

During the course of the hearing, the Panel was provided with information that the workers’ status with his employer had changed as of February 20, 2007. The change in status at that point in time was not an issue before the Panel.

Reasons

Accordingly, the appeal is allowed.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
B. Malazdrewich, Commissioner

Recording Secretary, B. Kosc

B. Williams - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of September, 2007