The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

On June 11, 2007, the worker filed a claim with the Workers Compensation Board (“WCB”) for a low back injury that occurred on June 6, 2007. The claim for compensation was accepted and benefits were paid to the worker to July 29, 2007 when it was determined that she had recovered from the effects of her injury. The worker is presently appealing a decision made by Review Office that her current back difficulties were not related to the June 6, 2007 incident. A hearing was held on June 11, 2009 to consider the matter.

Issue

Whether or not responsibility should be accepted for the worker’s current low back difficulties.

Decision

That responsibility should be accepted for the worker’s current low back difficulties.

Background

The worker reported that she injured the right side of her low back region on June 6, 2007 when she slipped and fell over a chair. The worker indicated that she was running to get the telephone and the chair was out and the floor was slippery and she slipped and fell. Based on a report received from the treating physician dated June 8, 2007, the worker’s condition was diagnosed as a contusion. When assessed by a physiotherapist on June 12, 2007, the diagnosis rendered was “discogenic low back pain with s.i. joint injury”. A June 19, 2007 x-ray of the lumbosacral spine was considered normal. The claim for compensation was accepted and benefits were paid to the worker.

On July 6, 2007, the treating physician changed the worker’s diagnosis to a sacroiliac joint strain.

On July 16, 2007, the worker advised a WCB adjudicator that she went to see a doctor on July 13 and her progress was pretty good. She indicated that her back felt a whole lot better and that she did not think she would be on WCB for more than another week or two and then she should be ready to return to work.

In a progress report dated July 20, 2007, the treating physician reported that the worker was capable of returning to work on July 30, 2007. Based on these findings, the WCB paid the worker wage loss benefits to July 29, 2007 inclusive and final.

On September 2, 2008, the worker called the WCB to advise that she had another accident that did not happen at work. The worker advised that she had been having ongoing difficulties since the original accident.

On September 2, 2008, a WCB adjudicator contacted the worker to gather additional information. The worker reported that on August 28, 2008, she was at home and went to bend over to pick up a waste basket and her back went into spasm. It was in the right lower part of her back, the same spot as the June 2007 incident. The worker advised that she had not worked since her incident a year ago and had not sought any medical treatment since July 2007. The adjudicator told the worker that based on the information she provided, the WCB could not confirm any continuity to say this incident was a result of her 2007 incident and in addition, the incident occurred at home and it did not occur at work. This decision was relayed to the worker in writing on September 22, 2008.

On September 30, 2008, the worker appealed the above decision to Review Office. She noted that her low back pain was in the same area she had when she fell at her previous workplace. The worker indicated that she never had a back problem until the 2007 work related incident. The worker noted that she did not seek medical treatment because the discomfort came and went.

In a October 23, 2008 decision, Review Office decided that the worker was not entitled to wage loss benefits effective August 28, 2008. Review Office outlined its opinion that the evidence on file which included the diagnosis, the evidence supporting recovery of the June 6, 2007 injury, the lack of medical treatment between July 2007 and August 2008 and the time that passed did not support a causal relationship between the compensable injury and the worker’s current back difficulties.

On March 17, 2009, the worker called the WCB to indicate that she recently had an MRI performed and that the results showed that she would not be able to work for a very long time. The worker indicated that she worked for a particular company as an administrative assistant for about a month and a half and that her back became much worse as a result.

The Review Officer noted that an MRI of the lumbar spine dated February 23, 2009 reported “There are mild degenerative changes as described with no evidence of nerve root compression nor stenosis.”

In a letter to the worker dated April 1, 2009, Review Office noted that although the MRI showed shallow disc protrusions/bulge at several levels, there was no evidence of nerve root compression or stenosis. As the worker did not attend for medical treatment between July 2007 and August 2008, there was no medical evidence to support that the MRI findings were related to the work injury of June 6, 2007. In conclusion, Review Office indicated that there was no new information provided to support a relationship between the compensable injury of June 6, 2007 and the difficulties she had following an injury sustained at home on August 28, 2008. On April 16, 2009, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Following the hearing held on June 11, 2009, the appeal panel requested additional information from three physicians. The medical information requested by the panel was later received and was forwarded to the interested parties for comment. On September 14, 2009, the panel met further to discuss the case and rendered its final decision.

Reasons

Chairperson Walsh and Commissioner Walker

The issue in this appeal is whether or not responsibility should be accepted for the worker's current low back difficulties. Based on our review of the totality of the evidence, a majority of the Panel finds that the worker's current low back difficulties remain causally related to the original compensable injury and responsibility should, therefore, be accepted for those difficulties.

The worker testified at the hearing of this appeal. Her evidence about the original injury was that she was mopping floors at work, when the phone rang. She ran to get the phone, tripped and fell sideways landing on her spine and buttocks on the right-hand side. She testified that she was sore right away and later that night the pain got really bad along the right-hand side and lower back area above the gluteal muscle. The worker testified that the pain she continues to experience has always been in the same place as it was at the time of her initial fall; that it has never gone away. When she was first assessed by her physician after the accident, the worker was diagnosed with a back contusion. Several days later she was seen again by her physician who noted that she was having back spasms that worsened over the weekend and that she had more difficulty sitting.

The worker was then referred to physiotherapy as the result of which her diagnosis changed somewhat. The ultimate diagnosis accepted by the WCB was "discogenic lumbar pain with s.i. joint injury."

The worker testified that she did see some improvement through physiotherapy but that her back never became pain free. She indicated, however, that she had always been self-sufficient. Accordingly, because her physician told her it was just a sore back and was something she would have to live with, the worker said she was prepared to accept her physician's recommendation that she was capable of returning to work on July 30, 2007. The worker testified, however, that her back was still sore as of that date; it throbbed from day to day and some days were better than others. The worker also testified that she asked her physician for an MRI when she first saw the physician after the injury but the physician declined to order the test, saying she did not feel it was warranted.

The worker then testified that on August 28, 2008, while at home, when she bent down to pick up a small wicker waste basket which contained paper, her back went into severe spasms.

She confirmed that prior to that date, between July 30, 2007, and August 28, 2008, she had continued to experience ongoing back pain. During that time she took Tylenol 3's as needed and otherwise took Advil. Since her employer discontinued her job from the outset of her injury in June 2007 the worker was also, during the period between July 2007, and August 2008, seeking employment. In fact, she indicated that she obtained a job in December, 2008, but was only able to last for a short period of time because she could not sit due to the pain in her back.

The worker testified that the reason she did not seek medical treatment between July 2007, and August, 2008, was because her original family physician went on maternity leave and she had difficulty finding another physician. As well, because her physician had refused to order an MRI and had advised her that she would simply have to live with the pain, the worker said she did not feel it was appropriate to seek further medical treatment until she experienced the pain and spasms on August 28, 2008.

The worker testified that the spasms she experienced on August 28, 2008 were similar to the spasms she experienced at the time of her initial injury and were in the same localized area of her body.

As a result of the incident on August 28, 2008, the worker went to see a physician who prescribed pain medication and advised that she had a sore back. The physician did not, however, order an MRI.

Eventually, the worker was seen by another physician who did order an MRI which was performed on February 22, 2009.

Among other things, the MRI report indicated as follows:

"At L4/5, there is a shallow disc protrusion left laterally with a small annular tear and this is also present right laterally."

In 2009 the worker found a new family physician who, having read the MRI Report, confirmed to the worker that she had "bulging discs and tears in her back". The family physician referred the worker to a specialist. This appointment had not yet taken place as of the time of this decision.

Upon questioning by the panel, the worker confirmed that the pain she experienced when she bent over to pick up the wicker waste paper basket was the same as the pain she experienced at the time of her initial injury. She stated that when she first bent over to pick up the waste basket, the spasms she experienced were excruciating and that the severity of the pain since August 2008, to the present is pretty much the same as the severity of pain between her original injury in 2007 and the 2008 incident. The panel was provided with a letter dated May 6, 2009, written by one of the worker's close friends. In the letter, the friend indicates that she has been a witness to the worker's entire struggle with her back injury and that from her observation the pain in the worker's back from the initial injury has never completely gone away.

The friend also confirmed that the worker was told after the initial injury, that she had suffered a contusion and might always experience back issues and that this was something she was going to have to learn to live with. The letter goes on to indicate that this diagnosis left the worker believing that she would always suffer from some moderation of back pain and that she would just have to find a way to work around it; that the worker was determined to do what she could to recover enough to return to her normal way of life and so went off workers compensation when her back was only about 75% better. The worker's friend specifically indicates in her letter that "The pain has varied in moderation but has always been present and is always the same pain in the same place…When her back went into spasms in August 2008 and the pain was so intense she had to seek immediate attention, the first thing she said after calling to tell me was that she knew this was not just a contusion she would have to live with; that something was really wrong and she was going to insist on tests until receipt of a proper diagnosis."

On May 14, 2009, the worker's family physician provided a report confirming that the worker had recently come under his care and that she had significant back pain. The report goes on to indicate that in his opinion the August 2008 injury was related to the original injury of 2007 and that given the MRI results, it is unlikely that "the injury" of 2008, caused the discopathy shown on the MRI.

In a written submission of the same date to the Appeal Commission, the worker confirmed that she had asked her original treating physician to have an MRI done at the time of her initial injury but that her physician did not think it was necessary. She also submitted that insofar as her "so called injury at home in August, 2008, it is medically impossible for me to have bulging discs and tears from bending over and picking up a waste paper basket less than two pounds. The only mistake on my part is that even though my back has been sore that whole time, I should have sought medical attention. But as I was told it was only a contusion… ".

We note that in determining that the worker was not entitled to wage loss benefits effective August 28, 2008, Review Office found there was no evidence to support a continuity of signs and symptoms between the worker's ongoing pain and the original compensable injury. In support of this finding Review Office in its decision of October 23, 2008, pointed out that the worker did not seek medical treatment for any difficulties she was experiencing. Following receipt of the MRI, Review Office reconsidered its decision of October 23, 2008, at the request of the worker. It continued to find no entitlement to wage loss benefits effective August 28, 2008. In support of its decision it referred to the fact that the MRI report showed mild degenerative changes and that although there were shallow disc protrusions/bulges at several levels there was no evidence of nerve root compression or stenosis.

The panel notes that Review Office did not make reference to that portion of the MRI report which noted the finding of small annular tears on both the left and right sides of the disc protrusion.

In its decision of April 1, 2009, Review Office also indicated that because the worker did not attend for medical treatment between July 2007 and August 2008, there was no medical evidence on file to support that the MRI findings are related to the work injury of June 6, 2007.

At the hearing of this appeal, however, the worker explained that she did ask both her original treating physician and other physicians to perform an MRI. The worker persevered and ultimately was successful in finding a physician who ordered the MRI to be done in February, 2009. The evidence as well, was that, once the worker's original treating physician went on maternity leave the worker had difficulty finding a replacement physician.

We find that the worker's failure to seek medical treatment between July 2007 and August 2008 was a function of the difficulty she experienced in locating a new physician together with her belief from discussions with her original physician that she would simply have to put up with ongoing back pain for the rest of her life. We also find that during that time period the worker was not pain free and that the pain she experienced was in the same area as the pain experienced from the initial injury.

After the hearing of this matter, the panel sought further information from the physicians who treated the worker subsequent to August 28, 2008.

The physician who treated the worker immediately after the incident on August 28, 2008, reported that he suspected a possible disc herniation. The physician from the same clinic who saw the worker in January, 2009, and who ordered the MRI provided a clinical diagnosis of right sacroiliac joint dysfunction and perhaps a component of discogenic low back pain. He confirmed that the MRI demonstrated mild diffused degenerative changes as well as small annular tears of the L4/5 and L5-S1 discs together with a small protrusion at the L4/5 disc. In his opinion, the findings were consistent with her clinical picture of discogenic low back pain without significant radicular symptoms. The worker's family physician confirmed that the MRI findings are consistent with an acute injury in this age group. This was further to his initial report of May 14, 2009, in which he indicated that "given the MRI results, it is unlikely that the "injury" of 2008 where she bent over, caused the discopathy shown on the MRI."

Based on all of the above evidence, including the medical evidence and the testimony of the worker, we find that the worker is experiencing a continuity of symptoms which remain causally related to the original compensable injury of 2007. We find that the worker has never been pain free since that original injury. We accept her explanation as to why she did not seek further medical treatment until 2008, notwithstanding the fact that she was never pain free. We further find that the mechanism of the incident on August 28, 2008, when the worker bent over to pick up a wicker waste basket containing paper, was not commensurate with the symptoms experienced by the worker or with the MRI findings subsequently reported. Rather, we find that both the worker's ongoing symptoms and the MRI findings are related to the injury she sustained in June 2007, which was not fully diagnosed until the MRI investigation and from which the worker has never fully recovered.

Accordingly, we find that responsibility should be accepted for the worker's current low back difficulties.

Panel Members

S. Walsh, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

S. Walsh - Presiding Officer

Signed at Winnipeg this 5th day of November, 2009

Commissioner's Dissent

• While the worker indicates that the pain suffered in the August 2008 incident was in the same area of the back, I note that the two incidents involved very different mechanisms of injury; the first occurred as a result of a slip and fall into a chair, while the second from a simple bending of the body. In my view, bending over to pick up an object is a common cause of the onset of acute low back pain, and is the type of activity that can occur in the ordinary course of life. In my view, the worker simply suffered another strain, in the same area of the back as the June 4, 2007 workplace injury. This incident occurred at home, and was distant in time from the original incident. It is a discrete incident, and since it occurred at home, there is no basis for providing compensation for this bending incident and its consequences.

Based on my analysis, I find on a balance of probabilities that the worker had long since recovered from the original workplace injury. This second incident took place much later, when the worker had been long absent from work, at home. It arose from a mechanism injury that could, in itself, lead to the worker’s current difficulties, and was not causally related to the worker’s previous workplace injury. I would therefore deny the worker’s appeal.

A. Finkel, Commissioner

Signed at Winnipeg, this 5^th day of November, 2009.