Decision #141/07 - Type: Workers Compensation

Preamble

This appeal deals with whether the worker recovered from her workplace injury and was capable of returning to work. The worker was injured while moving boxes at work. She applied to the Workers Compensation Board (WCB) for benefits and her claim was accepted and benefits were provided. Subsequently, the WCB determined that the worker was fit to return to work and was not entitled to further medical aid benefits. The worker appealed to Review Office which upheld the WCB’s decision. She then appealed to the Appeal Commission and a hearing was held on September 17, 2007.

Issue

Whether or not the worker is entitled to full wage loss benefits effective August 22, 2005;

Whether or not the worker was capable of returning to her full time pre-accident duties effective September 19, 2005; and

Whether or not the worker is entitled to medical aid benefits effective September 19, 2005.

Decision

That the worker is entitled to full wage loss benefits from August 22, 2005 to November 22, 2006 inclusive;

That the worker was not capable of returning to her full time pre-accident duties effective September 19, 2005; and

That the worker is entitled to medical aid benefits related to the muscular issues that were accepted in decision one and two.

Decision: Unanimous

Background

On April 26, 2005, the worker lifted a heavy box of product when she felt a sharp pain in her abdomen. As the day went on, the pain progressed to her low back and over the sacrum. On May 2, 2005, the attending chiropractor diagnosed the worker’s condition as an acute lumbosacral disc injury.

The worker then sought treatment from a general practitioner who diagnosed her condition as a muscle strain to the low back. She was also seen by a physiotherapist who diagnosed the worker with a lumbosacral strain with radicular symptoms.

On June 22, 2005, an orthopaedic specialist reported that x-rays of the pelvis, sacrum and coccyx showed no fractures and both sacroiliac joints and hips were normal. He assessed the worker with a soft tissue strain to her abdomen and low back. He noted that she developed a bursitis to her coccyx. When seen again on June 29, 2005, the orthopaedic specialist indicated that a steroid injection to the sacrococcygeal area was not helpful and the worker said it hurt to sit or to walk. He felt the worker was fit to perform light duties between July 4, 2005 and July 14, 2005 and then she could resume her full regular work duties.

File records show that the worker attempted a return to work on June 21, 2005 but lasted only three hours due to pain.

Following an examination on August 9, 2005, a WCB medical advisor diagnosed the worker with non-specific low back pain. She stated that although the worker had some neurological symptoms, there were no objective clinical findings to support nerve impingement. There was no evidence of a pre-existing condition delaying her recovery at this point in time. The medical advisor felt the worker was capable of a graduated return to work with the following restrictions:

  • No lifting greater than 20 pounds;
  • No repeated or sustained forward flexing or twisting of the spine;
  • To change positions as needed.

The worker returned to modified duties which consisted of front desk/counter and answering telephones. In a telephone conversation with her adjudicator on August 16, 2005, the worker stated she was in a lot of pain and could not finish her three hour shift. The worker indicated that if she could not get in to see her doctor by August 18, 2005, she would go to the hospital.

In a letter dated August 22, 2005, the worker was advised that she would be paid partial wage loss benefits during her return to modified duties at reduced hours. By September 19, 2005 it was considered by the WCB that she would be back at her full regular work hours with no restrictions.

On August 30, 2005, the worker advised the WCB that she attended a hospital for treatment and that they took her off work due to her back pain. A report received from the hospital dated August 29, 2005, showed that the worker was diagnosed with a lumbar radiculopathy.

A CT scan of the lumbosacral spine dated September 13, 2005 showed no evidence of a disc protrusion, spinal stenosis or neural foraminal stenosis at L2-3 and L3-4. At L4-5 and L5-S1 there was mild posterior bulging of the intervertebral disc and no distortion of the thecal sac. There was no evidence of spinal stenosis or neural foraminal stenosis. No nerve root compression was suspected at either level.

On September 21, 2005, a sports medicine physician diagnosed the worker with discogenic lumbar pain.

A bone scan dated September 23, 2005 was reported as being a normal study.

On October 6, 2005, the case manager advised the worker that after review of updated medical information and test results, it was her opinion that the worker had sufficiently recovered from her compensable injury.

On October 26, 2005, a WCB medical advisor noted that CT and bone scan reports were reviewed and neither showed any pathology related to the compensable injury nor did they provide a diagnosis for the worker’s pain complaints. She found no objective findings to change her opinion that the worker was at least fit for modified duties.

In January 2006, an MRI of the lumbosacral spine revealed no evidence of disc protrusion or nerve root compression. The spinal canal was well maintained and there was no evidence of spinal stenosis or facet arthropathy. An MRI of the pelvis demonstrated no mass lesion and no other abnormality was seen.

The worker was seen by a neurosurgeon on February 21, 2006. He stated the worker’s clinical presentation was not necessarily suggestive of a radiculopathy. He felt the worker’s symptoms were more probably musculoskeletal.

On June 28, 2006, the worker asked Review Office to reconsider the case manager’s decision that she had recovered from the effects of her compensable injury. Included with her submission was a report from an occupational health physician dated June 1, 2006. On August 2, 2006, Review Office referred the case back to a sector manager to consider the new medical information.

A report from a physical medicine and rehabilitation specialist (a physiatrist) showed that the worker was seen on May 17, 2006 and reported a history of right sacroiliac region pain with symptoms extending down the posterior thigh and calf to the heel. Following his assessment, the specialist treated the worker with a right sacroiliac joint injection on July 11, 2006. When next seen on July 26, 2006, electrodiagnostic testing was also performed.

On October 26, 2006, a WCB physiatry consultant reviewed the file at the request of the case manager. His opinion was as follows:

  • there was no evidence of any cause/effect relationship between the current reported symptoms and the incident of April 26, 2005;
  • there was no evidence that the SI joint injection was in any way related to the incident of April 26, 2005;
  • there was no rationale on file as to why the worker would not have been able to return to full duties in October 2005;
  • the condition of coccygeal bursitis did not appear to be a known condition and there was no evidence that the April 26, 2005 incident would have resulted in any potential coccygeal problems or that it would have prevented her return to modified duties as of August 2005.

Based on the opinion expressed by the WCB physiatrist on October 26, 2006, the worker was advised by her WCB case manager on November 10, 2006 that there was no evidence of any cause and effect relationship between her ongoing symptoms and the reported accident of April 2005 nor was there any reason why she could not return to full work duties and full hours in September 2005.

In its decision dated November 24, 2006, Review Office stated it was unable to establish that the worker was incapable of returning to her pre-accident duties effective September 19, 2005 and that any treatment she received as of September 19, 2005 or thereafter was due to the effects of her compensable injury. Review Office found on a balance of probabilities that the worker suffered a soft tissue injury involving her low back and stomach on April 26, 2005. It felt that the modified duties provided by the employer were sedentary in nature and were within the worker’s physical restrictions. The worker’s inability to work beyond August 22, 2005 was not due to her compensable injury. Review Office said there was no definitive diagnosis or any clinical or diagnostic evidence to support a cause and effect relationship between the worker’s signs and symptoms after September 18, 2006 due to the original work event. On June 15, 2007, the worker appealed Review Office’s decision and a hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the Act), regulations and policies of the Board of Directors.

In accordance with subsections 4(2) and 39(2) of the Act, wage loss benefits are payable for workplace injuries until such a time as the worker’s loss of earning capacity ends, as determined by the WCB. Coverage for medical aid expenses is authorized by sections 27 and 37 of the Act. Policy 44.120.10 provides a comprehensive and coordinated approach to the delivery of medical aid services.

Worker’s Position

The worker attended the hearing and explained her reasons for appealing the WCB decision. She answered questions posed by the panel.

The worker described the accident which occurred at work on April 26, 2005. The worker was moving heavy boxes when she felt a pop in her back and shooting pain in her abdomen. She finished the remaining fifteen minutes of her shift. She stated that when she got home after work the pain was more intense. She went to work the next day in pain and then saw a chiropractor. She later saw a physician at a walk-in clinic.

The worker explained that she attempted modified duties on June 21, 2005 but was only able to work three hours. She did not work again until August 15, 2005. On this occasion she worked for two hours answering the phone. She felt another pop in her back which caused intense pain. She went to a hospital emergency ward because the pain was so bad. She did not return to work with the accident employer but did find other employment as of March 18, 2007.

With respect to medical information, the worker noted the reports on file indicate no pre-existing condition and no abnormal pain behaviour.

The worker advised that she attended a program that included stretching, breathing and massage from October 2, 2006 to November 22, 2006. In answer to questions, she acknowledged that the treatments were basically muscular treatments. She stated that “I found within a couple weeks I was able – I was more flexible, the pain was decreasing and things were just overall getting better.” She advised that before the program she had excruciating pain in her SI joint, pain radiating down her right leg, and numbness in her right foot. At the end of the program she stated that “I was feeling very good, almost just about ready to go back to work.” She has not had any other treatment since participating in this program but did get a gym membership.

The worker also advised that she saw a physiatrist. He gave her two injections into the right SI joint. She said the first injection decreased her pain by at least 75% but the second injection had very little effect. She continues to see her family physician.

The worker indicated that since returning to work her pain has worsened slightly. She attributed this to being exhausted from working and being unable to get to the gym after work.

Analysis

The first issue was whether the worker is entitled to full wage loss benefits effective August 22, 2005. For the appeal of this issue to be successful the panel must find that the worker was suffering a loss of earning capacity due to the accident on this date. In other words, was the worker unable to work as a result of her workplace injury. The panel determined that the worker did have a loss of earning capacity from August 22, 2005 up to November 22, 2006.

The second issue is whether the worker was capable of returning to her full time pre-accident duties effective September 19, 2005. For the appeal of this issue to be successful, the panel must find that the worker was not fit to return to work on a full-time basis as of this date. The panel did make this determination. The panel found that the worker was not fit to return to work until after November 22, 2006.

The final issue before the panel was whether the worker is entitled to medical aid benefits effective September 19, 2005. For the appeal of this issue to be successful, the panel must find that the worker continued to suffer symptoms from the workplace injury which required ongoing treatment. The panel did make this determination. The panel found that the worker is entitled to medical aid benefits related to the diagnosis of a muscle injury until November 22, 2006, after which date the panel finds that the worker had recovered.

The panel is satisfied that the worker’s workplace injury kept her from returning to full-time pre-accident duties in September 2005 and caused a loss of earning capacity effective August 22, 2005. However, the panel finds on a balance of probabilities that the worker did recover from the workplace injury by November 22, 2006.

Regarding the nature of the worker’s injury, the panel notes the opinion of a consulting neurosurgeon. In a report dated February 21, 2006, the neurosurgeon reported that the MRI of the worker’s lumbosacral spine dated January 2, 2006 showed no abnormality of the discs, no evidence of a compression of the thecal sac or roots and no spinal stenosis. He reported that her presentation is not necessarily suggestive of radiculopathy and there is no radiological evidence of such. He opined that the worker’s symptoms are most probably musculoskeletal. The panel accepts the neurosurgeon’s assessment and finds that the worker’s workplace injury was muscular in nature.

The panel also notes that the worker was seen by a physiatrist who gave the worker right SI joint injections. The worker had an excellent response to the first injection but no additional benefit was reported from a second injection. The physiatrist noted that the worker was to start a new treatment program involving massage and exercise. He commented that this program sounded encouraging and no formal follow-up was required. The panel also notes that a WCB physiatrist commented that the evidence does not support a relationship between the SI joint injection and the workplace injury. Given the lack of results from the second injection and the consultant’s opinion, the panel finds, on a balance of probabilities, that the SI joint condition is not related to the workplace injury.

Finally, the panel notes that the worker participated in a program of massage, stretching and yoga which was aimed at a muscular injury. The panel places significant weight upon the worker’s evidence at the hearing regarding her improved condition after participating in the program. The panel notes that this program was completed on November 22, 2006 and finds that the worker had recovered from the workplace injury by this date and that her compensable loss of earnings also ended at this date.

The appeal is allowed.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 25th day of October, 2007

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