Decision #127/07 - Type: Workers Compensation
Preamble
This appeal deals with the relationship between the worker’s workplace injury and her ongoing medical treatments.
The worker was injured on April 10, 2004 and filed a claim with the Workers Compensation Board (WCB). The WCB accepted the worker’s claim, but found that she had recovered by November 2004 and refused to pay for treatments and time loss from work after November 2004. The worker appealed to Review Office which upheld the WCB decision. The worker then appealed to the Appeal Commission and a file review was held on July 9, 2007. Prior to rendering a decision on the issue under appeal, the appeal panel requested and received additional information from the worker’s treating chiropractor and a physiotherapy facility. On August 17, 2007, all interested parties were given copies of these reports and were asked to provide comment. On September 14, 2007, the panel met and considered submissions by both the worker and the employer’s representative.
Issue
Whether or not responsibility should be accepted for additional treatment and time loss from work beyond November 2004.Decision
That responsibility should not be accepted for additional treatment and time loss from work beyond November 2004.Decision: Unanimous
Background
On April 10, 2004, the worker slipped on a wet floor and reported an injury to her low back. On July 16, 2004, the worker was diagnosed with mechanical low back pain with left sciatica.
On July 23, 2004, a CT scan of the lumbar spine revealed the following findings:
“At L4-L5, there is mild annular disc prominence. No focal disc protrusion, nerve root compression or spinal stenosis is identified. At L5-S1, there is a tiny central/right paracentral disc protrusion without nerve root compression or spinal stenosis.”
On August 13, 2004, the worker advised the WCB that she was planning to attend physiotherapy treatment.
On December 23, 2004, the worker indicated she was still having problems with her left sciatica and took two days off work. She said she worked in an operating room and two doctors were aware of her difficulties. She had been receiving physiotherapy since the date of injury. She stated that she saw a chiropractor on November 26 and November 29, 2004.
In a report to the WCB dated February 21, 2005, the chiropractor noted the worker presented to his office on November 26, 2004 complaining of severe pain in her left leg radiating from the left lumbar area. Following his examination, the chiropractor diagnosed the worker with inflammation of the left sciatic nerve. He stated the worker responded well to treatment and at the examination on November 29, 2004, all traces of pain were gone and she had normal range of motion.
On March 10, 2005, a therapist/co-worker advised the case manager that she was aware of the worker’s difficulties. The worker had been attending physiotherapy on an ongoing basis.
On January 9, 2006, the worker advised the WCB that she saw her chiropractor in September 2005 for a constant burning pain. She said there were no new accidents and that she was continuing with her regular duties. She received no medical treatment between November 2004 and September 2005.
On March 8, 2006, the chiropractor stated the worker was treated for a left sciatic problem that started after a fall on a wet floor while at work. The examination revealed a severely inflamed left sciatic nerve with limited straight leg raising. He treated the worker with spinal manipulation therapy of the lumbar spine, release of the left piriformis muscle and cryotherapy over the left gluteal area.
In a decision dated May 3, 2006, the worker was advised that the WCB was not accepting responsibility for additional treatment or time loss from work as the medical information received in February 2005 indicated that her condition had resolved. On August 16, 2006, the worker appealed the decision to Review Office stating that she received chiropractic treatment in September 2005, February 2006 and March 2006 where he performed deep massage and released the left piriformis muscle at each of these appointments.
On August 25, 2006, Review Office confirmed the decision that no responsibility would be accepted for additional treatment or time loss from work. Review Office stated that based on the available evidence, the worker had recovered from the April 10, 2004 low back injury as reported when last seen by her chiropractor in November 2004. Any further time loss or medical treatment beyond that date was not related to the compensable low back injury. On February 28, 2007, the worker appealed Review Office’s decision to the Appeal Commission.
On May 27, 2007, the worker provided the Appeal Commission with a report from a second chiropractor and a physiotherapist in support of her position that her compensable injury had not yet healed.
In an undated report, the physiotherapist stated the worker was assessed on September 26, 2006 with the diagnosis of left buttock pain. The worker stated that after running, she would have discomfort from the left buttock to posterior thigh for 2 to 3 days. The pain was aggravated by sitting, especially in a car. When asked regarding her current status, the worker stated that she had been improving over the past two years but her condition recently plateaued. When seen for follow up on October 5, 2006, the worker reported increased discomfort from the stretches she was prescribed. He noted that sacroiliac mobility had improved and she was still tender on palpation over the piriformis as well as gluteus medius. On October 12, 2006, the worker reported no change in status but did a lot of yard work that weekend. When seen on October 24, 2006, the worker reported ongoing discomfort with prolonged sitting. There was no change in her pain pattern.
In an undated report, the second chiropractor stated that the worker first began treatment in December 2006 on the advice of her sports medicine specialist. The worker reported that she had ongoing chronic buttock pain with infrequent referral to her posterior thigh since the accident of April 2004. He stated, “As far as causation is concerned the description given to me by the patient is of sudden onset buttock pain occurring shortly after a slip and fall at work. There is temporal consistency in her reporting from the date of loss through to when she saw me. Given the mechanism of injury and the consistent reports of discomfort it seems to me that there is a probable relationship between the slip and fall and the current necessity for care.”
In a submission to the Appeal Commission dated June 25, 2007, the employer’s advocate outlined her position that the worker had recovered from her mechanical low back injury by November 2004 based on medical evidence.
In a report to the appeal panel dated August 13, 2007, the treating chiropractor noted that the worker complained of severe pain in the left gluteal area radiating to her left leg on November 26, 2004. She explained that she had a severe fall on a wet floor. The worker complained of a recurring problem with her left sciatic nerve and this was stabilized on February 2, 2006. On February 9, 2006, the worker complained that pain in her leg kept on recurring especially during periods of exercise. On February 2, 2006, the worker complained of a recurring problem in her leg. When interviewed on July 30, 2007, the worker claimed that the treatment she received for her leg problem had finally cleared the sciatic pain and she was now able to resume normal duties and could do exercise without any pain.
In response to the appeal panel’s request for information regarding the worker’s physiotherapy treatment that she received at a local hospital, this showed that the worker saw a physiotherapist “face to face” between August 30 to October 18, 2004. She did not attend physiotherapy treatment from November 2004 onward.
Reasons
Worker’s Position
The worker’s notice of appeal dated February 28, 2007 indicated that the injury had not healed and that she was continuing to receive doctor’s care and treatment. On September 25, 2006, the worker was referred by her physician to a physiotherapist and to a sports injury physician. She attended four sessions of physiotherapy. The physiotherapist determined that the treatment was not resolving the pain. She was referred to a second chiropractor by the sports injury physician. As of the date of her submission, the chiropractor had provided 15 ART (Active Release Therapy) treatments.
The worker provided a letter dated May 27, 2007 in support of her appeal. She provided letters from the physiotherapist and second chiropractor. She advised that she had not missed any work due to this injury except for two days of appointments in November 2004.
The worker provided a further letter dated September 4, 2007. She advised that she attended seven physiotherapy sessions from August 2004 to October 2004 but was unable to attend further appointments as the physiotherapy department was open the same hours as she worked. She advised that the physiotherapy gave her minimal relief of her pain.
Employer’s Position
The employer was represented by an advocate who provided a written submission dated June 25, 2007. The employer’s representative advised that the employer agrees with the Review Office decision that responsibility not be accepted for additional treatment and time loss beyond November 2004.
The employer’s representative provided a further submission dated August 27, 2007. She submitted there is no causal link between the compensable injury and any ongoing chiropractic adjustments. She submitted that the information shows that the worker had recovered from the work-related injury by November 29, 2004.
Analysis
The issue before the panel is whether responsibility should be accepted for additional treatment and time loss from work beyond November 2004. For this appeal to be successful, the panel must find that the worker continued to suffer from the effects of the work related injury after this date. The panel was not able to make this determination. The panel is unable to relate the worker’s complaints after November 2004 to the workplace injury.
The panel places significant weight upon the report of the treating chiropractor who treated the worker on November 26 and 29, 2004. In a report dated February 21, 2005 the chiropractor notes that “Patient responded very well to treatment. At last examination all traces of pain were gone and range of motion normal.” This supports the panel’s finding that the worker’s injury had resolved by November 2004.
The panel also notes that the worker’s last physiotherapy appointment at the hospital clinic was October 18, 2004. The physiotherapist reported “Improved, some deficits remain.” While the worker explained that she discontinued treatments because of a conflict between her work hours and the clinic hours, this supports the view that her condition was resolving. The panel notes also that the worker received minimal medical treatment after November 2004 until 2006.
The panel notes that the worker received treatments for the same general area as her workplace injury prior to the injury. She received treatments for her sacroiliac area in 2001 and gluteal area in 2003. This was noted in the report from the treating chiropractor dated April 13, 2007. This report also notes that the worker complained of recurring pain in her leg in February 2006 especially during periods of exercise. A similar complaint was noted by a physiotherapist in a report received at the WCB on May 30, 2007. The physiotherapist reported that the worker “…noted after running she would have discomfort from the left buttock to posterior thigh for 2-3 days.” The panel finds that the worker had episodic flare-ups of pain before her workplace injury and after. The panel finds that these flare-ups are not related to her workplace injury, but are indicative of a pattern of exacerbations and recoveries. The panel concludes that the worker in this instance did indeed suffer a work related flare-up of her low back problem on April 10, 2004, but that she had recovered to her baseline by November 2004. The panel therefore finds on a balance of probabilities that the worker had recovered from her compensable injury by November 2004, and therefore there is no responsibility for additional treatment and time loss from work as of that date.
The worker’s appeal is declined.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
B. Malazdrewich, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 28th day of September, 2007