Decision #40/08 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board (“WCB”) for multiple injuries that she related to a work event that occurred on January 25, 2005. The WCB accepted the claim for compensation based on the diagnosis of multiple soft tissue injuries and benefits were paid to the worker up until April 12, 2005 when it was determined by primary adjudication and Review Office that she had recovered from the effects of her compensable injury. The worker disagreed with the decision and filed an appeal with the Appeal Commission. A hearing was then held on March 11, 2008.Issue
Whether or not the worker is entitled to wage loss benefits beyond April 12, 2005.Decision
That the worker is entitled to wage loss benefits from April 12, 2005 to March 17, 2006.Decision: Unanimous
Background
The worker was employed as a teacher’s assistant on January 25, 2005 when she reported injuries to her neck, shoulder, arms, hands and back when she was assisting two co-workers with restraining an unruly child/student. The worker indicated that this incident occurred at the end of her shift and later that night she experienced a lot of pain.
The worker sought medical treatment on January 26 and 31, 2005. The attending physician outlined subjective complaints as pain in the back, buttocks, shoulders and thumbs. The worker’s hands were swollen with tingling and numbness. The diagnosis was multiple sites of soft tissue injury.
The worker sought medical attention from a chiropractor on January 31, 2005. His diagnosis of the worker’s condition was an acute sacroiliac joint sprain/strain with findings suggestive of a median nerve compression and neck pain radiating to the shoulders.
When seen for treatment on March 9, 2005, the treating physician noted that the worker’s subjective complaints included pain radiating down the right leg and tingling in the toes of the right foot. The worker claimed that this pain was there since her injury and her pain worsened with chiropractic treatment. The following new diagnoses was rendered: possible sciatica and mechanical low back pain.
On March 10, 2005 a CT scan was performed and the radiological report indicated that there was no evidence of disc herniation, spinal stenosis or nerve root compression at L3-4, L4-5 and L5-S1.
On March 29, 2005, the treating physician reported that the worker still had pain radiating down her right leg and the prescribed treatment was physiotherapy and medication. The physician noted that the worker may return to part-time light duty work after her first physiotherapy visit. If the worker felt that she was unable to do this, she was instructed to make a follow-up appointment with the physician.
On April 7, 2005, the worker was first treated by a physiotherapist and his diagnosis of the worker’s condition was lumbosacral strain and radicular signs.
In a subsequent report dated May 17, 2005, the physiotherapist reported that the worker received no long term improvement in her symptoms and that she presently had a significant amount of pain and was very pain focused. She was unable to tolerate more than a few minutes in any one position without marked increase in her level of discomfort. It was recommended that the worker receive a multi-disciplinary approach which included a pain control assessment.
On May 19, 2005, a WCB medical advisor reviewed the file information at the request of primary adjudication. He said the diagnosis was mechanical back pain. He said the mechanism of injury would most likely produce only soft tissue injuries and strains with a recovery time of four weeks. He could not relate the worker’s ongoing symptoms to her compensable injury.
In a decision dated June 7, 2005, the worker was advised of the WCB’s opinion that she had recovered from the effects of her January 25, 2005 compensable injury and that there was no further loss of earning capacity after April 12, 2005. The worker was advised that any ongoing symptoms or conditions she had did not relate to her original compensable injury.
At the request of the treating physician, the worker was referred to a physical medicine and rehabilitation specialist (a physiatrist) and was examined on October 27, 2005. In his report dated November 8, 2005, the physiatrist described the worker’s mechanism of injury as “In January 2005, she was trying to restrain a 13-year-old student at school. She had grabbed the 13 year old from the back. The student tried to break the patient’s hold. In the ensuing struggle, she stated she was slammed against the wall falling to the floor…Later that evening, [the worker] experienced diffuse lower back stiffness, right shoulder stiffness, and a constant pain, which radiated from the upper right buttock down the lateral aspect of the right leg to the right 4 and 5 toes. This remains unchanged.” His impression of the worker’s condition was discomfort within the periformis which he felt may be related to the mechanism of injury. He said there was no evidence of an ongoing neurologic problem or possible radiculopathy. He noted several maladaptive gait and movement behaviors.
The above medical report was reviewed by a WCB medical advisor on March 2, 2005 at the request of primary adjudication. In a decision dated March 13, 2006, the worker was advised that there would be no change made to the decision of June 7, 2005 as it was still the WCB’s opinion that she had recovered from the effects of her workplace injury and that any ongoing symptoms/condition was not related to her compensable injury.
On April 12, 2006, the above decision was appealed to Review Office by a worker advisor, acting on the worker’s behalf. The worker advisor contended that the worker’s problems were the result of right piriformis syndrome based on the opinion expressed by the treating physiatrist as outlined in his report dated November 8, 2005 and his further report of March 17, 2006.
In his report dated March 17, 2006, the physiatrist stated that he attributed the worker’s presumed right piriformis syndrome to the work related injury where she fell on her buttocks with immediate onset and ongoing pain since. He thought the worker’s pain was related to the injury, both in a temporal manner to mechanism of injury manner, as well as lack of alternate diagnoses. He noted that piriformis syndrome would produce some of the worker’s pain complaints including pain down the leg and into the foot. He indicated that the worker was treated with a piriformis injection.
In a decision dated April 28, 2006, the Review Office confirmed that the worker was not entitled to wage loss benefits beyond April 12, 2003. Review Office noted that the description of injury provided by the physiatrist was different than the one described by the worker throughout the file. Review Office indicated that it sought the medical advice of a WCB orthopaedic consultant who opined that the worker most likely sustained multiple soft tissue contusions on January 25, 2005 and that recovery from these injuries had taken place. The consultant was further of the view that the diagnosis of piriformis syndrome was primarily a description of the area of the worker’s reported symptoms.
On June 18, 2007 and June 21, 2007, the worker advisor provided Review Office with additional medical reports from the treating physiatrist for consideration. On June 27, 2007, Review Office determined that the new reports from the physiatrist did not alter its previous decision dated May 3, 2006. Review Office indicated that the physiatrist essentially re-stated the same opinion he expressed in his earlier reports of November 6, 2005 and March 17, 2006 and that these opinions were considered in Review Office’s prior decision dated May 3, 2006.
On November 29, 2007, the worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was requested. Included with the submission was additional information concerning “piriformis syndrome” and a letter from the worker explaining why there was a discrepancy in the accident description.
Reasons
The worker in this case is seeking to have her wage loss benefits extended beyond April 12, 2005, being the date that the WCB terminated her benefits for her January 2005 compensable injury. To do so, the panel would have to find that the worker was suffering from a compensable medical injury that precluded her from earning her pre-accident wages beyond April 12, 2005. The panel did find that the worker is entitled to wage loss benefits from April 12, 2005 to March 17, 2006.
Legislation:
Subsections 4(2) and 39(2) of The Workers Compensation Act (the Act) provide that a worker is entitled to wage loss benefits as long as the worker continues to have a compensable medical condition that affects the worker’s ability to earn their pre-accident wages.
The Worker’s Position
The worker was represented by a worker advisor, and provided arguments and oral evidence as to why the worker should receive wage loss benefits beyond April 12, 2005. Their position is that the worker suffered multiple soft tissue injuries while restraining a violent student, as part of her job responsibilities as an educational aide. The worker’s testimony is that during the incident, she was pushed back against a wall, and that the student and worker fell to the ground as a result, with the worker landing on her buttocks. The worker’s position is that the symptoms associated with one of the medical conditions later identified -- piriformis syndrome -- was present from the outset and continued to affect the worker’s ability to return to work as an educational aide.
The worker advisor argues that the piriformis syndrome was formally diagnosed by a physical and rehabilitation specialist (physiatrist) in March 2006, but that the symptoms described by the specialist were consistently identified by the worker’s various treating practitioners since the date of the accident. These symptoms included pain in the buttock and radiating pain down through the leg into the lateral part of the foot. From internet-based literature provided by the worker advisor, their position is that spasming of the piriformis muscle compresses the sciatic nerve, leading to the radiating pain. The worker advisor notes that the cortisone injection to the piriformis muscle provided by the physiatrist on March 17, 2006 provided the worker with immediate and long lasting relief of the condition, suggesting that this was the correct diagnosis, and that it is causally related to the work injury.
The worker advisor notes that the WCB Review Office’s orthopaedic consultant gave a written opinion that the worker’s soft tissue symptoms should have resolved in a few months and that the physiatrist’s description of piriformis syndrome was a non-diagnosis. The worker advisor argues that the opinion of the worker’s treating specialist should be preferred to that of the WCB consultant, as an orthopaedic specialist is not qualified to speak to soft tissue issues, and the physiatrist has had the advantage of actually treating the worker, as compared to the file review undertaken by the WCB consultant. The advisor also states that the use of a recovery norm is not appropriate as the basis of the Review Office’s adjudication.
The worker advised that she eventually returned to her educational aide position in September 2007, and has more or less worked fulltime since that point in a number of term positions. Any absences since that point have been for non-work or non-injury related conditions.
The worker is seeking wage loss benefits to the date of her return to work in September 2007.
In response to questions by the panel, the worker advised that she had immediate improvement in her right buttock/leg condition from the injection, and that improvement has been sustained to the current time. The worker also noted the development of a bilateral carpal tunnel syndrome (CTS) condition in 2003/4 which deteriorated to the point of her having a left CTS decompression surgery in the summer of 2005, and a right CTS decompression surgery in late 2006. The worker also has right shoulder issues. The worker also advised that she tried a very brief return to work some time in the 2006-2007 year, and that she had not made herself fully available to work until September 2007 because she was fearful of injury. The worker has been steadily employed since that point in time.
The Employer’s Position
The employer representative relies on the opinion of the Review Office’s orthopaedic consultant who stated that the worker’s soft tissue condition should have resolved within a few months, and that the piriformis syndrome was not diagnostic in nature. He also noted that the worker was a casual employee, and that the availability of hours to the worker in this job classification was entirely dependent on the worker’s calling to make herself available. The employer has no control over casual employees in this category and has no idea of why the worker did not make herself available to work until September 2007. The representative noted that despite a request to do so, the worker had not provided the employer with any information regarding her work restrictions at any time after her benefits were terminated in April 2005.
Analysis
For the worker to be successful on her appeal, the panel would have to find that the worker continued to have a compensable medical condition after April 12, 2005 that resulted in a loss of earnings after that date.
After a full review of the medical reports and evidence on file, the panel finds that the worker’s compensable injuries included a diagnosed piriformis syndrome condition which affected her ability to work in her pre-accident job after April 12, 2005. This finding is supported by the diagnosis of the worker’s physiatrist of this condition in his medical report of November 8, 2005, the continuity since the outset of this claim of the symptoms typically associated with this condition, and in particular, by the successful resolution of the condition with a single cortisone injection on March 17, 2006. The panel further finds that the mechanism of injury described by the worker, including the banging of her back against a wall and sliding down fast to the ground with the student on top of her, landing on her buttocks, to be a reasonable cause for the onset of the symptoms and condition.
As for the entitlement to wage loss benefits, the panel notes that the piriformis condition seriously constrained the worker’s mobility, because of the leg weakness, pain, and numbness associated with the condition. This is confirmed by a number of medical reports on file prior to the March 17, 2006 treatment. This evidence leads the panel to conclude that the WCB’s termination of wage loss benefits on April 12, 2005 was premature, as there was indeed a compensable medical condition affecting her ability to work as of that date.
However, the treatment of the piriformis condition on March 17, 2006 was dramatic in its impact. The worker noted immediate and long lasting improvement, and this is confirmed in the physiatrist’s subsequent reports of July 13, 2006, and May 23, 2007 (for an examination on April 19, 2007), as well as the worker’s evidence at the hearing that her right leg condition is the same currently as it was immediately after the injection. Based on this evidence, the panel finds on a balance of probabilities that the worker had recovered from her 2004 compensable injury as of March 17, 2006, being the date of the injection. On this basis, the panel would extend the payment of wage loss benefits to the worker to that date.
The panel does wish to note that although the worker did not actively re-engage her employment as a casual worker with the accident employer until September 2007, the panel is not prepared to extend wage loss benefits to that date. In this regard, the panel relies on the worker’s evidence that she was able to resume full time term positions in her pre-accident occupation from September 2007 and forward, and had no work absences or ongoing medical treatment directly associated with her compensable injuries. The panel further notes that that the worker was a casual employee whose responsibility it was, to call the substitute coordinator and make herself available for employment. Given the panel’s findings that the worker’s improved condition was the same in March 2006 as it was in September 2007, the panel concludes that the worker was also functionally and medically able to resume her duties as an educational aide following her March 17, 2006 medical treatment, and would have been able to earn her pre-accident wages at that point in time. As such, the panel finds that the worker’s loss of earnings between March 17, 2006 and September 2007 were not a consequence of her compensable injury.
The panel does note that the worker did have other non-compensable medical conditions that came into play in 2005 and later, in particular her bilateral CTS condition, which included one surgery during the period in which the panel has granted benefits. It is the view of the panel that the piriformis syndrome condition would have precluded the worker from working at her educational aide position at the time of the first CTS surgery, and that those other conditions would not be factors that might reduce her wage loss entitlements during that time frame.
Based on this analysis, the panel finds on a balance of probabilities that the worker is entitled to wage loss benefits from April 12, 2005 to March 17, 2006.
The worker’s appeal is therefore accepted.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
G. Ogonowski, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 19th day of March, 2008