Decision #10/09 - Type: Workers Compensation
Preamble
On May 25, 2004, the worker filed a claim with the Workers Compensation Board (“WCB”) for a low back injury that occurred at work on April 27, 2004. The claim for compensation was accepted and the worker was paid benefits to February 25, 2005 when it was determined by primary adjudication that benefits should be suspended due to failure to participate in physiotherapy. It was subsequently determined in September 2005 that the worker had recovered from the effects of her compensable injury. The decision was continued by Review Office. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A hearing was held on September 25, 2008 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits beyond February 25, 2005.Decision
That the worker is entitled to wage loss benefits beyond February 25, 2005.Decision: Unanimous
Background
On her application for compensation benefits dated May 25, 2004, the worker reported that she injured her low back region on April 27, 2004 from the following work related accident:
“I was carrying the cases with 6 large cans in it from the back to the kitchen, causing me to injure my lower back. It was approx. 10 feet. Weight of each case is unknown. The cans contained juice.”
When speaking with a WCB adjudicator on May 25, 2004, the worker stated that she had some minor back pain in her tailbone area on April 26, 2004. She said she was carrying and opening/punching cans with an industrial can opener on April 27, 2004. To open the cans, she twisted her upper body to the right and felt something grab her in the bottom and she felt shooting pain into her tailbone area, lower right hand side. After she felt the shooting pain, she went to sit down and told a co-worker that her back was sore. She then tried to finish her shift but had trouble opening the cans so she left most of her work for the following day. When she arrived home on the date of accident, she had to lay down and could not move her leg.
When seen by a chiropractor for treatment on April 29, 2004, the worker reported that she was lifting cases of peaches and shortly afterwards her back began to tighten. The worker complained of low back pain with some radiation into the right leg. The diagnosis rendered was a moderate lumbosacral strain.
X-rays taken of the lumbosacral spine on June 11, 2004 revealed a very slight scoliosis convex to the left. The disc space and vertebral height was well maintained. There was very minor spurring anteriorly at L3, L4 and L5. No further abnormality was demonstrated.
A doctor’s first report dated June 18, 2004 indicated that the worker was arranging cases of peaches that weighed about 40 lbs. when she developed severe back pain. The worker was prescribed medication and was referred to physiotherapy.
On August 4, 2004, the worker advised a WCB case management representative that her physiotherapist placed her on a “traction” table to help stretch her back. She stated that this caused her a great deal of discomfort and that she ended up in bed all weekend because of the pain. The worker indicated that she did not want to continue with physiotherapy treatments due to the pain but did not want to jeopardize her compensation claim. As her general practitioner wanted her to have more physiotherapy, she changed to a hospital based physiotherapist.
On August 12, 2004, the worker underwent a CT scan of the lumbosacral spine. At L5-S1, there was no evidence of a disc herniation, central spinal stenosis or nerve root compression but there was mild disc space narrowing. At L3-4, there was a small broad based posterior disc bulge with no evidence of disc herniation, central spinal stenosis or nerve root compression. At L4-5, there was a broad based posterior disc bulge but no evidence of a disc herniation, central spinal stenosis or nerve root compression.
On October 15, 2004, a WCB medical advisor examined the worker and reported decreased range of motion of the lumbosacral spine, negative dural tension tests and normal neurological examination. He noted that the worker’s symptoms were mechanical in nature and that she was de-conditioned. The medical advisor also outlined other symptoms that were not associated with the compensable injury. He opined that the worker was unable to return to work at the present time.
On December 7, 2004, the worker told her WCB case manager that she had received acupuncture and her back had a bit more movement. While she thought she was getting stronger, she still had pain in her right hip and down her right leg and it felt like her leg was giving in.
On December 9, 2004, a WCB case manager spoke with the treating physiotherapist who thought that the worker’s condition was improving but she still had localized pain. The physiotherapist commented that she would start to focus on a reconditioning program for the worker.
In a January 19, 2005 progress report, the treating physician indicated that the worker was ready to return to work on a part-time basis. As the worker did not have a job to return to with the accident employer, the WCB arranged for the worker to undergo an additional four weeks of physiotherapy treatment.
On February 17, 2005, the worker commenced a reconditioning program. On February 28, 2005, the treating physiotherapist advised the WCB that the worker cancelled her appointment and all future appointments as well.
In a letter dated March 3, 2005, the worker was advised by her WCB case manager that since she was unable to attend physiotherapy treatments, the WCB was unable to pay her any benefits beyond February 25, 2005 as per Section 22 of The Workers Compensation Act (the “Act”).
Subsequent progress reports from the treating physician indicated that the worker continued to experience pain. On April 19, 2005, x-rays of the pelvis and both hips were reported as showing very minor degenerative changes.
On April 6, 2005, a WCB orthopaedic consultant examined the worker. He noted that the worker did not give a consistent history of a specific work related injury and that her symptoms seemed to develop over a period of time. He said the worker’s subjective physical findings were atypical and not diagnostic. Her range of motion was more restricted than one would expect with the findings on the CT scan.
An MRI of the lumbar spine took place on May 31, 2005. The radiological report stated there was “Very minor degenerative disc disease from L3-4 to L5-S1.”
On August 10, 2005, the WCB orthoapedic consultant made the following comments:
“Re MRI of L-S spine report of May 31/05 and report of hip xrays on Apr 19/05
The reports indicate very minor degenerative changes in the hips and very minor degenerative disc disease from L3-4 to L5-S1. I do not feel the Tarlov cyst is of any significance.
These reports do not note any changes consistent with an injury. I feel the degenerative changes are pre-existing. Any aggravation of these changes would have resolved by now.
No evidence of enhancement of these conditions was reported.”
In a September 19, 2005 letter, the WCB case manager advised the worker that she would not be reinstating her WCB wage loss benefits as there were no findings in the medical reports to suggest that the worker was not capable of working. On October 19, 2005, the worker appealed the decision and the case was forwarded to Review Office for consideration.
On November 10, 2005, Review Office confirmed that the worker was not entitled to wage loss benefits beyond February 25, 2005. Review Office noted that the worker complained of leg pain in addition to low back pain and that diagnostic testing failed to identify any structural injury and only very minor degenerative changes in her lumbosacral spine. It noted that the worker discontinued physiotherapy treatment of her own accord in February 2005, while undergoing a reconditioning program to prepare her to return to work. Review Office believed that the medical evidence established that the worker’s injury was nothing more than a muscular strain and there was no medical explanation for the duration and extent of her ongoing symptomatology.
The case was again considered by Review Office on February 27, 2008 following receipt of additional medical information from the worker’s treating physician, an occupational health physician and a physical medicine specialist. Review Office noted that the reports submitted by the treating physician documented the worker’s ongoing complaints of pain. It noted the findings of the physical medicine specialist who assessed the worker in March 2006 and provided treatment to her until August 1, 2006. In the April 19, 2006 report, it was noted that the worker displayed numerous abnormal illness behaviors during his clinical assessment. He characterized the worker’s circumstances as: “a very difficult case, with codependent pain behaviors between the patient and her family…this woman will have to be active despite her pain, and that will be the only way for her to get better…she is not a total “write off” at the present time, and I would not advocate for her to be on a chronic disability claim on a permanent basis.” On August 1, 2006, the worker was discharged from further care indicating that the worker gave up doing her back exercises and that there was an element of secondary gain in her presentation. Review Office noted that the occupational health physician did not see the worker for her ongoing complaints until the fall of 2007 and diagnosed her as suffering from regional myofascial pain syndrome which he related to her work injury of April 27, 2004.
Review Office indicated that it placed significant weight on the comments made by the physical medicine specialist and was unable to alter its earlier decision to deny wage loss benefits beyond
February 25, 2005. On May 2, 2008, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
At the hearing, a report dated April 23, 2008 from a treating physiatrist was submitted to the panel. The report indicated that “The patient demonstrates signs and symptoms (T12, L3 and L5 spinal sensitized dermatomes with active ligamentous and muscle trigger points in corresponding myotomes and sclerotomes) characteristic of myofascial pain associated with spinal segmental sensitization.” A trial of segmental neuromyotherapy, changes in medication, exercises and psychological involvement was recommended.
Following the hearing, the appeal panel arranged for the worker to undergo an independent medical examination. A report from the independent medical examiner was later received and was forwarded to the interested parties for comment. On January 8 and January 9, 2009, the panel met to further discuss the case and render its final decision.
Reasons
Worker’s submission:
The worker was represented by legal counsel at the hearing. It was submitted on behalf of the worker that her medical care has been fraught with problems. Initially her regular general practitioner was not available and another doctor from that clinic would not treat her. She ended up being bounced from doctor to doctor. Her experience with the physical medicine specialist was described as a “nightmare” and did not seem to help. The only help she seemed to have received was to some degree from the hospital where she received physiotherapy and acupuncture. Legal counsel argued that she tried every treatment recommended to her in spite of numerous negative outcomes and submitted that it was not unreasonable for her to refuse something that didn’t help her. More currently, it was significant that since she went to the occupational health physician and received the referral to the physiatrist, she is on the right road. While a return to work at the present time is not possible, she is now doing things which will hopefully help her. The worker should not be penalized because of a decision that she made to refuse treatments that were simply not effective or had a negative outcome.
Applicable Legislation:
The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.
As the accident occurred in April 2004, the claim is assessed under the Act as it existed at that time. Section 22 of the Act (as it was in 2004) provided as follows:
Practices delaying worker’s recovery
22 Where an injured worker persists in insanitary or injurious practices which tend to imperil or retard his or her recovery, or refuses to submit to such medical or surgical treatment as in the opinion of the board is reasonably essential to promote his or her recovery, or fails in the opinion of the board to mitigate the consequences of the accident, the board may, in its discretion, reduce the compensation of the worker to such sum, if any, as would in its opinion be payable were such practices not persisted in or if the worker had submitted to the treatment or had mitigated the consequences of the accident.
Analysis:
This appeal deals with entitlement to wage loss benefits after February 25, 2005. Initially, February 25, 2005 was the effective date upon which the WCB suspended the worker’s benefits pursuant to section 22 of the Act for failing to attend physiotherapy appointments. Subsequently, in September 2005, after further diagnostic testing, the WCB determined that there were no findings to indicate that the worker was incapable of working, and so her wage loss benefits were never reinstated. Accordingly, for this panel to hold that the worker is entitled to benefits after February 25, 2005, we must find on a balance of probabilities that after that date, the worker continued to suffer a loss of earning capacity as a result of her compensable injury and that the worker did not fail in her duty to mitigate pursuant to section 22 of the Act.
After the hearing, the panel requested that an independent third party conduct a medical examination of the worker and provide the panel with an opinion. On November 13, 2008, the panel was provided with a report from a specialist in physical medicine and rehabilitation. In the independent physician’s opinion, it was possible that early on, the worker’s condition was precipitated by a subtle discovertebral injury associated with radicular pain without overt signs of radiculopathy. Given the passage of time, however, the persistence of radicular pain as a reasonable explanation for the worker’s current symptoms is not supported. He was of the opinion that at the present time, the most probable diagnosis accounting for the worker’s current symptoms is a chronic pain disorder. He stated: “This disorder implies a condition where the symptoms themselves take on a life of their own and outlast the event(s) that may have precipitated it. Pain, per se, is the problem rather than any specific anatomic derangement. While physical factors may precipitate a chronic pain disorder, psychosocial factors are felt to play an important role in the perpetuation of the condition.”
Although the independent physician concludes with a reasonable degree of medical certainty that there does not appear to be a probable cause and effect relationship between the worker’s current low back condition and her reported workplace incident of April 27, 2004, the panel understands his opinion to be that the worker is not currently suffering from symptoms arising from any specific anatomic derangement. Any discovertebral injury and radicular pain has resolved. The independent physician does indicate, however, that a chronic pain disorder has developed and that the workplace incident was the precipitating event.
When a psychological condition develops from a compensable physical injury, responsibility is accepted by the WCB for the resulting impairment to earning capacity. Thus, even though the chronic pain disorder is described as taking on a life of its own, the chronic pain disorder started with the workplace injury and accordingly, benefits are payable. It is therefore the panel’s decision that, with respect to the first area of inquiry, the worker did continue to suffer a loss of earning capacity after February 25, 2005 as a result of her compensable injury.
This leaves the second aspect of our inquiry, and that is whether or not the worker failed in her duty to mitigate pursuant to section 22 of the Act. The WCB initially suspended benefits in February 2005 as a result of the worker’s non-participation in physiotherapy treatment. The treating physiotherapist informed the WCB that the worker had cancelled her appointment on February 28, 2005 and all future appointments. The worker was advised by the WCB that not attending physiotherapy would have a negative impact on her recovery and therefore no further wage loss benefits would be paid until she resumed treatment. She never returned to physiotherapy.
The panel agrees with the WCB’s decision to suspend wage loss benefits as of February 25, 2005 due to the worker’s refusal to assist in her own recovery. Section 22 of the Act imposes on workers an obligation to participate in reasonable medical treatment, and by refusing to continue with the physiotherapy reconditioning program, the worker failed in her obligation. We therefore find that wage loss benefits were properly suspended at that time.
The file material indicates that the next time the worker became an active participant in her recovery was when she commenced treatment on March 10, 2006 at a rehabilitation clinic when she was first assessed by a physical medicine specialist. His April 19, 2006 report indicated that in his view, the worker: “is not irreversibly injured, and that there is a very high likelihood that she will be significantly improved from her present situation. This depends totally upon her attitude, and her ability to work at becoming better again.” The panel finds that the suspension of wage loss benefits should be removed as of March 10, 2006, as the worker was participating in her recovery at that time. Wage loss benefits should continue to be paid for as long as the worker was involved with the rehabilitation program. Unfortunately, on August 1, 2006, the worker was discharged from the program due to her refusal to perform some more advanced exercises. The physical medicine specialist felt that the worker should be able to do more than she was doing, that recovery was her responsibility, and that if she would not do her back exercises then her back pain would continue. The panel finds that the suspension of wage loss benefits should be put in place again as of August 1, 2006 due to the worker’s failure to follow the recommended treatment plan of the physical medicine specialist.
The next time the worker engaged in medical treatment for her condition was in October, 2007 when she was assessed by an occupational health physician. After assessing the worker, he opined that: “treatment is important for further recovery, she has not reached maximum improvement given the troubled sequence of previous treatments.” A referral to a physiatrist was arranged. The April 23, 2008 report from the physiatrist indicated that a trial of segmental neuromyotherapy directed on eradication of active ligamentous and muscle trigger points was offered to the worker. It was also suggested that psychology involvement would be of benefit. At the hearing, the worker reported that she had been undergoing needling treatments with the physiatrist and was gaining some relief. She indicated that “it feels a lot better” and “it seems like I’m starting to get to move around a little bit better.”
The panel finds that the suspension of wage loss benefits should be lifted as of October 25, 2007, which is the date of the first report from the occupational health physician. The worker should continue with the treatment she had commenced with the physiatrist and wage loss benefits should continue for so long as the worker participates in her recovery and suffers from a loss of earning capacity due to the chronic pain disorder. The panel notes its concerns with the worker’s lack of cooperation with what we believe were reasonable treatment plans and we question whether the severity of her condition was worsened by deconditioning related to her refusal to participate. Nevertheless, we are of the view that access to treatment and wage loss benefits should be extended to the worker at this time in hopes that the worker can experience the recovery which several medical practitioners have indicated she may be capable of achieving.
The worker’s appeal is allowed.
Panel Members
L. Choy, Presiding OfficerJ. Gervino, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 15th day of January, 2009