Decision #14/09 - Type: Workers Compensation

Preamble

The worker has an accepted claim with the Workers Compensation Board (“WCB”) for a low back injury that occurred in the workplace on September 24, 2003. The worker is presently appealing two decisions that were made by primary adjudication and the Review Office in which it was determined that there was no evidence to support a cause and effect relationship between the worker’s loss of earnings after July 27, 2004 to her compensable injury and the scheduling of a Medical Review Panel (“MRP”) under subsection 67(4) of The Workers Compensation Act (the “Act”) was refused. A hearing was held on December 10, 2008 to consider the matter.

Issue

Whether or not a Medical Review Panel should be convened pursuant to subsection 67(4) of the Act; and

Whether or not the worker is entitled to benefits and services after July 27, 2004.

Decision

That a Medical Review Panel should not be convened given that the worker is entitled to wage loss benefits; and

That the worker is entitled to benefits from September 30, 2004 to the date she completed the Reach for Equality Program in approximately mid February 2006.

Decision: Unanimous

Background

The worker injured her low back region on September 24, 2003 when she went to sit down in a chair which had moved. She twisted to grab the chair and then fell on the chair and to the floor. On the same day, the worker attended her doctor who noted tenderness in the sacroiliac area and low back muscle. The diagnosis rendered was mechanical low back strain. The claim for compensation was accepted and wage loss benefits were paid to the worker effective October 1, 2003.

On October 6, 2003, the worker was first assessed by a physiotherapist for complaints of low back and buttock pain. The diagnosis rendered was facet inflammation, possible disc pathology and a left lumbar sprain/strain injury.

The worker returned to her regular work duties for two days but experienced a flare-up of back pain. In a doctor’s progress report dated October 22, 2003, it was indicated that the worker had tenderness in the sacroiliac/piriformis/low back muscles on the left. On November 5, 2003, the physician changed the diagnosis to S1 radiculopathy and a CT scan was arranged. On November 19, 2003, the diagnosis was S1 root irritation versus mechanical.

The worker underwent a CT scan of the lumbar spine on November 19, 2003. At the L4-L5 level, there was minimal bulging of the disc posteriorly and no evidence of focal herniation. There was minimal facet arthropathy evident and no nerve root compression. At the L5-S1 region, there was diffuse minimal disc bulging without definite evidence of focal herniation. Some osteophytes were seen posteriorly on the left. There was no evidence of spinal stenosis or nerve root compression.

A WCB medical advisor reviewed the file on December 8, 2003. Based on the CT scan results, he opined that the primary diagnosis of the worker’s condition was a lumbar strain. He stated that the pre-existing changes at the lumbar spine represented possibly a mild aggravation. He expressed the view that the worker would likely be able to return to modified duties within 2 to 3 weeks’ time.

In January 2004, the worker returned to light duty work as a production assembler of electronic components, starting at 2 hours per day. After five days, she developed an increase in her symptoms. On January 22, 2004, the treating physician reported that he did not find any signs of radiculopathy on examination. A trial of chiropractic treatment was suggested to treat the worker’s SI joint pain.

On February 20, 2004, a WCB medical advisor examined the worker and found no convincing evidence of spinal nerve root impingement. He stated that the worker’s pre-existing radiological evidence was not likely to be a significant contributor to her delayed recovery. He thought the worker seemed to be depressed and that these symptoms may be delaying her recovery. He felt that the worker was not completely disabled and was capable of work with restrictions to avoid lifting greater than 20 lbs., no prolonged or repetitive lumbar flexion/extension and the ability to change positions often.

Nerve conduction studies of the left foot taken March 1, 2004 were considered to be normal.

On March 16, 2004, the worker was seen by a pain management specialist. His diagnosis was sleep disturbance, left SI joint irritation and soft tissue pain of the lumbar para spinals, quadratus lumborum bilaterally, left pelvic musculature and left biceps femoris. Dry needling treatment was carried out with no improvement in symptoms.

A bone scan examination of March 26, 2004 revealed subtle bone reaction in keeping with degenerative disc disease at the L4-L5 level.

On April 26, 2004, the treating physician reported that he was taking the worker off work as her symptoms were worsening. The examination showed tenderness over her SI joints. In his view, the worker appeared to have more mechanical pain and SI joint pain rather than radiculopathy type pain.

Another doctor examined the worker on April 28, 2004. His diagnosis was left SI joint pain and regional myofascial pain.

On May 6, 2004, the worker was interviewed at the WCB’s Pain Management Unit (“PMU”).

Following a work site visit on May 19, 2004, a WCB case manager determined that the worker was performing modified duties that were outside of her current work restrictions. Adjustments were made to the worker’s job site area to accommodate her restrictions.

In a letter dated June 22, 2004, the worker was advised that a case conference was held with the WCB health care advisor who examined her and the PMU medical advisors. It was their opinion that the worker was capable of a graduated return to work with restrictions. The graduated return to work program was to commence June 16 and by July 28, 2004, it was expected that she would be capable of working eight hours per day. The worker was advised that wage loss benefits would be paid to July 27, 2004 inclusive and final.

In a report dated August 17, 2004, the pain management specialist reported that the worker underwent acupuncture treatments and as of July 22, 2004, she reported no change at all in her pain complaints. An MRI was suggested to rule out pathological processes. He felt that the worker was capable of sedentary work with no prolonged sitting or standing and no repetitive bending at the waist or heavy lifting.

An MRI of the lumbar spine was performed on October 11, 2004. Based on the MRI findings, a WCB medical advisor opined on October 18, 2004, that degenerative disc disease was prolonging the worker’s recovery.

On October 19, 2004, the WCB case manager advised the worker that in the opinion of the WCB, she had recovered from the effects of her compensable injury (mechanical low back strain) and that any symptoms she was currently experiencing were attributable to her pre-existing degenerative disc disease. It was confirmed that wage loss benefits would be paid to July 27, 2004 inclusive and final.

In a letter to the worker’s representative dated August 22, 2005, an occupational health physician reported that the worker had objective evidence of a nagging pain affecting her left buttock with radiation down the left leg. He felt that the compensable injury aggravated the worker’s degenerative changes noted on the imaging studies. This report was reviewed by a WCB medical advisor on August 25, 2005 at the request of primary adjudication. It was the medical advisor’s opinion that such an aggravation would have resolved within four to six weeks.

In a letter dated August 29, 2005, the WCB case manager advised all parties that no change would be made to the decision of October 19, 2004 based on the opinion outlined by the WCB medical advisor on August 25, 2005.

The worker was assessed by a physical medicine and rehabilitation specialist (physiatrist) on October 24, 2005 at the request of the treating physician. The specialist indicated that the worker presented with persistent lumbosacral and left lower limb pain with a radicular quality. Her investigations to date did not identify a definite patho-anatomical lesion to account for her symptoms. Diagnostic/therapeutic assisted injections were suggested and were agreed to by the worker.

On January 3, 2006, the worker’s representative submitted that as the report from the physiatrist dated October 24, 2005 indicated that the worker had not recovered from her compensable injury, WCB benefits and services should be reinstated. In the absence of reinstatement of benefits, a Medical Review Panel was requested under subsection 67(4) of the Act.

The physiatrist’s report was reviewed by a WCB medical advisor on January 16, 2006. In his opinion, the physiatrist did not provide any opinion as to the etiology or cause of the worker’s continued back complaints. He also agreed that there was no definite patho-anatomic lesion to account for the worker’s symptoms.

In a letter dated January 25, 2006, a WCB sector services manager outlined her view that an MRP would not be held as the requirements of subsection 67(1) or 67(4) of the Act had not been met. She noted that the physiatrist did not provide an opinion regarding any specific diagnosis nor did he indicate any relationship between the worker’s September 2003 soft tissue injury versus her pre-existing degenerative back condition and her ongoing complaints.

On January 26, 2006, the WCB case manager advised the worker’s representative that based on the file evidence which included the opinion by the WCB medical advisor, no change would be made to the previous decision of October 19, 2004. He also found no evidence that the worker was suffering from depression related to her compensable injury. The case manager remained of the opinion that the worker’s ongoing difficulties are more likely related to her pre-existing degenerative back condition. This decision was again confirmed to the worker’s representative in letters from the sector services manager dated March 10, 2006 and May 4, 2006.

In a letter dated January 19, 2007, the worker’s representative asked the case manager to consider a report from the physiatrist dated December 31, 2006. He noted that the worker underwent five injections between January 10, 2006 and October 6, 2006 with limited short-term results and that the injections were terminated and a sleeping medication was prescribed. He stated that in the opinion of the physiatrist, a relationship existed between the worker’s ongoing symptomatology and the September 24, 2003 compensable injury. Based on these findings, the representative asked that the worker’s benefits be reinstated or that a MRP be convened.

On January 29, 2007, the case manager noted that he compared the objective findings outlined in the December 31, 2006 medical report with the objective medical findings outlined on the October 26, 2006 report which was already considered and he determined that there were no new objective medical findings to warrant a change his opinion.

On January 30, 2007, the sector services manager advised the worker’s representative that based on her review of the physiatrist’s report, she found no new information or evidence which would support a direct ongoing cause and effect relationship between the worker’s original work injury and her ongoing symptoms. As well, there was no clear diagnosis presented other than “non-specific pain”, no clear findings in support of any ongoing disability or impairment, and no opinion on work restrictions other than self-limiting due to symptoms. The physiatrist’s report indicated that there was no pre-existing condition reported and that this was inconsistent with the objective testing and radiological evidence currently available on file. Given these findings, the requirements of subsection 67(4) of the Act had not been met and the MRP request was denied.

In a letter dated February 6, 2007, the worker’s representative asked Review Office to reconsider the case manager’s decision of January 29, 2007 and the sector services manager’s decision of January 30, 2007. He later provided Review Office with a formal submission along with additional medical evidence.

On November 29, 2007, Review Office determined there was no entitlement to wage loss benefits and services after July 27, 2004. Review Office found that the file evidence supported that the worker suffered a strain to her low back as a result of her compensable injury and that diagnostic evidence failed to suggest a more significant injury arising out of the workplace event. It found no evidence to support a cause and effect relationship between the worker’s loss of earnings after July 27, 2004 and further medical investigations and treatment to the compensable injury.

Review Office also determined that an MRP should not be convened. In the opinion of Review Office, the physiatrist’s reports did not meet the requirements of subsection 67(1) of the Act as he did not provide a full statement of the facts and reasons supporting a medical conclusion. On January 7, 2008, the worker’s representative appealed Review Office’s decision to the Appeal Commission and hearing was arranged.

Reasons

There are two issues being appealed before the panel. Each will be addressed individually.

  1. Whether or not the worker is entitled to benefits and services after July 27, 2004.

The first issue concerns the worker’s continuing entitlement to benefits and services. Under subsection 4(1) of The Workers Compensation Act (the “Act”), where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. 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 resulting from the accident ends. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

In order for the worker’s appeal on this issue to be successful, the panel must find that by July 27, 2004, the worker had not recovered from the effects of the injuries she sustained in the workplace accident of September 24, 2003. We are able to make that finding.

At the hearing, the worker’s evidence was that from the time of her injury in September 2003, until the time she received cortisone injections in 2006, her condition remained largely the same. She had pain in her back, starting just over her left buttock, which continued down to her foot and into her toes. She also experienced numbness in her leg. The type of pain remained the same throughout this period, although it would become worse if she engaged in some sort of activity which might aggravate it. She would get increased numbness in her leg if she sat too long, bent over, reached, swept or vacuumed. After receiving injections from her treating physiatrist, the worker found that the symptoms in her left leg improved, and she was left with mainly only lower back and buttock pain.

The worker also informed the panel about her return to work at modified duties with the accident employer in 2004. She stated that although she tried to perform the duties provided to her by the employer, she found that she could not keep up with the demands of assembly line work and that gradually, her pain increased. In late July, 2004, the employer’s plant had a shut-down which affected all employees, and the worker confirmed that she is not seeking wage loss benefits for that period. The time when she states that she was no longer capable of working due to the pain was in late September. Her last day working was September 29, 2004.

The worker is currently employed full time in a warehouse position which she started in June 2007. The position has her standing and walking for most of the day and she finds that it is within her restrictions. She is still cautious to avoid any activity which may aggravate her low back, but she states that she is able to manage, and has missed very few days from work at this new position on account of her back pain. The worker advised that she was able to secure this position with assistance from a re-employment outreach program for persons with disabilities in which she became involved in early 2006. The worker indicated that she participated in a 6 week program commencing in January 2006. Following the 6 weeks of training, she applied for several positions and worked in various temporary jobs. Eventually, in June 2007, she was hired by her present employer and finds that she is able to manage the job requirements within her current restrictions.

On a balance of probabilities, the panel finds that the worker suffered an acute workplace injury causing radicular pain and that the disabling consequences from this compensable injury continued until early 2006 when she experienced some pain relief from the treatments she was receiving and she was able to participate in the re-employment program. When the worker discontinued work on September 29, 2004, she was forced to stop working as a result of the radicular pain which she was experiencing. Although none of her doctors were able to identify the specific cause for her radicular pain, the history which she gave to all of the medical practitioners consistently reported left sided pain consistent with a S1 radicular process. Despite the inability of the worker’s physicians to arrive at a definitive diagnosis for her condition, there is no disputing that her reporting of pain was absolutely consistent and that there is no evidence of pain in those areas prior to the accident. The memo of the WCB medical advisor dated September 1, 2004 confirms that there were no abnormal pain behaviours reflected on the worker’s medical file. We therefore find that the worker was entitled to wage loss benefits from September 30, 2004 until the completion of the 6 week re-employment program, which would have ended in approximately mid-February, 2006. At this point in time, although the worker was still undergoing treatment with the physical medicine specialist, she was starting to experience some relief from the injections and she was able to begin a reintegration into the work force.

With respect to medical aid benefits, the panel finds that the worker continued to require treatment of her injury until the last cortisone injection given by her physical medicine specialist on October 6, 2006. The worker’s evidence was that following the injections, she experienced relief from her leg pain and that the only pain that she deals with now is in her low back and left buttock. The panel finds that by October 6, 2006, the acute radicular injury had resolved and that any continuing pain is related to the degenerative changes which are evidenced in the test reports. We therefore find that the worker was entitled to medical aid continuously from the time of the accident until October 6, 2006.

We note that at the hearing, the representative from the employer submitted that the claim ought to be disallowed due to a secondary injury which was reflected in the treating physician’s report dated December 31, 2003 and was unknown to the employer until access to the worker’s file was allowed in respect of the appealed issues. The treating physician’s report references an incident on December 31, 2003 where the worker “slipped on ice, did not fall but jarred foot and back to previous level.” The employer argues that they were not given an opportunity to investigate the circumstances surrounding the secondary injury and that it is possible that the worker’s continued symptoms may be attributable to the slip on ice. At the hearing, the worker was questioned about this injury. The worker stated that it was not a major fall, but rather that her left leg gave out when she was getting into her car to go to her medical appointment. She mentioned it to her physician at the appointment to illustrate the condition of her left leg. The worker denied causing greater injury to her left leg as a result of this slip. The panel accepts the worker’s evidence on this issue and finds that the secondary injury, to the extent that any incurred, was caused by and related to the effects of the first compensable injury and thus to the extent that there are any negative effects from this slip, these effects remain related to the original workplace injury and are compensable. In any event, the worker’s evidence was that her condition remained basically the same both before and after the slip, so that no real increase in symptoms resulted from the incident.

For the foregoing reasons, we find that the worker is entitled to benefits and services after July 27, 2004. The worker’s appeal is allowed.

2. Whether or not a Medical Review Panel should be convened pursuant to subsection 67(4) of the Act.

The worker has requested that a medical review panel be convened. In view of our finding that the worker had not recovered from the effects of the workplace injury by July 27, 2004, a medical review panel is not necessary. We therefore make no determination as to whether or not a medical review panel should be convened.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 19th day of January, 2009

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