Decision #06/10 - Type: Workers Compensation
Preamble
The worker is a laboratory technician who filed claims with the Workers Compensation Board (“WCB”) for injuries she sustained on December 13, 2004 and May 24, 2006. Both claims for compensation were accepted and benefits were paid to the worker. The worker is currently appealing decisions made by Review Office that she was not entitled to further wage loss and medical aid benefits on either claim. A hearing was held on November 25, 2009 to consider the matter.Issue
Claim for Injury dated December 13, 2004:
Whether or not the worker is entitled to wage loss and medical aid benefits after January 26, 2006.
Claim for Injury dated May 24, 2006:
Whether or not the worker is entitled to wage loss and medical aid benefits after September 5, 2007.
Decision
Claim for Injury dated December 13, 2004:
That the worker is not entitled to wage loss and medical aid benefits after January 26, 2006.
Claim for Injury dated May 24, 2006:
That the worker is not entitled to wage loss and medical aid benefits after September 5, 2007.
Decision: Unanimous
Background
December 13, 2004 claim:
On December 13, 2004, the worker reported to the WCB that she injured her low back region when she slipped in the employer’s parking lot and fell to the ground. A chiropractor’s first report dated December 15, 2004 diagnosed the worker’s injury as a lumbar contusion, sacroiliac irritation and facet joint irritation. The claim for compensation was accepted and benefits were paid to the worker. In January 2005, the worker commenced a graduated return to work program with the goal of returning to full time duties.
In early February 2005, the worker “tweaked” her low back while in the process of pushing boxes from underneath a counter. On February 2, 2005, the treating chiropractor reported that the worker had a burning pain across the lumbosacral spine, low back stiffness, muscle spasm on the left and had difficulties with stooping and walking short distances. The worker was advised to remain off work and to commence modified duties again on February 28, 2005.
In early March 2005, the worker ceased participating in the return to work program due to ongoing back difficulties.
On March 22, 2005, the worker was seen by a WCB chiropractic consultant who outlined the opinion that the worker suffered a soft tissue injury to her lumbosacral spine with involvement of the right lumbosacral facets and gluteal musculature. The consultant opined that the worker should increase her overall exercise activity in relation to the lumbosacral spine region and to attend chiropractic treatment once per week. In 2 to 3 weeks time, the worker could attempt a return to work in modified duties starting at four hours per day.
The worker was seen by a physiotherapist on March 29, 2005. It was reported that the worker had mechanical low back pain with poor trunk control and weakness in the abdominals and hip extensors and irritable right L4-S1 facet. Stabilization exercises were recommended for four weeks.
On May 16, 2005, the worker attempted a graduated return to work program with the goal of returning to full time duties by July 4, 2005.
On May 26, 2005, the treating physiotherapist indicated that the worker had worked her regular duties that day and the day before as someone was ill. As the worker was unable to take breaks as needed, she suffered an aggravation of back pain.
The worker attended a different chiropractor for treatment on May 30, 2005. The worker was diagnosed with a lower lumbar strain with probable discogenic irritation at the L5-S1 level.
Objective findings were poor mechanical movement in the lower lumbar spine with variations in range of motion from left to right. There was irritation at L5-S1 and sacro-iliac joints bilaterally. On June 3, 2005, the chiropractor advised the WCB case manager that although there were objective findings, he saw no reason for the worker not to proceed to full time work hours.
The worker underwent a CT scan of the lumbosacral spine on June 14, 2005. The findings revealed large osteophytes of L3 but no disc protrusion or spinal stenosis at L1-2-3-4, 5, or S1.
Subsequent file records showed that the worker’s return to work plan was suspended due to staffing issues, and that the worker had booked vacation from August 22 to September 6, 2005.
File records show that by September 12, 2005, the worker resumed her full regular duties but continued to experience aggravations to her back as well as shoulder complaints.
On September 15, 2005, the employer was advised by the WCB that it was entitled to 50% cost relief on the claim as there was evidence of a pre-existing condition which contributed to the worker’s time loss from work.
On January 26, 2006, a WCB medical advisor reviewed the medical information on file which consisted of reports from an occupational health physician and physiotherapist and was unable to relate the worker’s ongoing complaints to the work accident of December 13, 2004.
In a decision letter dated January 30, 2006, the worker was advised that based on the opinion expressed by the WCB’s healthcare branch, it was determined that she had recovered from the effects of her December 13, 2004 work injury and that the WCB would not be responsible for treatment rendered after January 26, 2006 inclusive. On June 2, 2006, the worker appealed the decision to Review Office.
On June 29, 2006, Review Office determined that the worker did not have a loss of earning capacity related to the compensable injury after January 26, 2006. Review Office noted in its decision that while the worker had several failed attempts at a graduated return to work due to ongoing symptoms, the medical information received in July, August, and September 2005 all indicated that the worker’s complaints had resolved and she was capable of full duties. Review Office also found that the employer’s physician’s findings did not significantly differ from the other practitioners involved in the worker’s care. Review Office was of the opinion that the information provided by the physician did not support a relationship between the compensable injury and the worker’s current symptoms.
The file was again considered by Review Office on December 20, 2007 at the worker’s request. Review Office indicated that the worker did not provide any evidence that was new or substantive that would change the previous Review Office decision dated June 29, 2006.
May 24, 2006 claim:
On May 24, 2006, the worker reported that she was pushing a cart with 7 water bottles (4 liters each) and was going to transfer them into a water bath. She moved between the bath and the cart to transfer the bottles. She grabbed the back end of the cart with her right hand to pull the cart sideways towards herself when she felt a sharp pain in her low back. The claim for compensation was accepted based on the diagnosis of a back strain.
Ongoing medical reports showed that the worker complained of pain in her low back, neck, and sacroiliac joints as well as pain and numbness in her left leg and buttock.
On August 9, 2006, the worker was seen by a WCB medical advisor to assess the worker’s current status. Based on his examination findings, the medical advisor concluded that the worker had a chronic injury to the sacroiliac joints associated with regional myofascial pain of the buttocks, the right side greater than the left. He found no evidence of radiculopathy, despite the worker’s reporting of radicular pain in the left sciatic distribution. The medical advisor recommended that the worker continue with modified duties and to discontinue the current reconditioning program until she was evaluated by a physiatrist.
A report received from the physiatrist dated August 23, 2006, diagnosed the worker with the following conditions:
- Sacroiliac joint dysfunction – moderate severity.
- Myofascial pain syndrome – gluteus muscles – moderate severity.
- Myofascial pain syndrome – spinal – moderate severity.
- Myofascial pain syndrome – lower extremity – severe.
The treatment plan outlined by the physiatrist was a lumbar stabilization program, a reconditioning program, acupuncture treatments, and a trigger point injection trial.
A Reconditioning Program Discharge Report dated November 2, 2006 indicated that the worker’s condition had improved. At the end of the program, the worker was capable of light strength level activity.
In a January 31, 2007 report, the physiatrist noted that the worker was doing five hour shifts and was having some difficulty with mid and upper back tightness. Examination showed moderate tenderness in the left periscapular area (rhomboids) and infraspinatus. Acupuncture treatment was recommended for these areas.
On February 2, 2007, a WCB medical advisor reviewed the file and outlined that myofascial pain syndrome was the current diagnosis and there was a cause and effect relationship between the diagnosis and the compensable injury.
On March 12, 2007, the treating physiatrist reported that the worker’s neck was sore for about a week which she related to lifting at work and that she complained of muscle spasm. Examination of the cervical spine and shoulder showed full range of motion in all directions. The physiatrist noted that the worker was now working 7 hours per shift and no follow up appointments were being arranged.
On March 16, 2007, x-rays were taken of the cervical spine and there was no evidence of a fracture or other abnormality. X-rays of the lumbosacral spine were reported as showing minor degenerative changes with slight narrowing of the intervertebral disc space at L4-L5 and minor scoliosis convex to the left. No evidence of bone or joint abnormality was noted in the sacroiliac joints.
An independent chiropractic examiner reported on July 4, 2007 that the worker had been seen for 28 approved dry needling sessions and 31 approved athletic therapy follow up sessions since her discharge from the reconditioning program on October 27, 2006. It was indicated that the worker was not doing exercises on her “bad days” and that she must perform the exercises or she would not get better.
In a report dated August 22, 2007, the treating physiatrist outlined the impression that the worker had chronic mild myomechanical mid and low back pain that had been resistant to conservative and moderately aggressive non-surgical treatment and rehabilitation. He indicated there was no serious pathological condition found and that the worker should remain active and working despite having ongoing symptoms.
On August 30, 2007, a WCB case manager advised the worker that the WCB was unable to accept further responsibility for her claim as the medical information did not establish a cause and effect relationship between the accident of May 24, 2006 and the current reported difficulties. The case manager noted that the worker’s initial injury was soft tissue in nature and that most of these injuries would resolve within 6 to 8 weeks.
The case was considered by Review Office on December 20, 2007 based on an appeal submission by the worker. Review Office determined that the worker no longer had a loss of earning capacity attributable to the compensable injury after September 5, 2007. Review Office stated in part that it attached weight to the physiatrist’s report of August 2007 which concluded that there was no evidence of any serious pathoanatomical condition that would account for the worker’s ongoing pain complaints. It stated that the worker had more than ample treatment for the compensable injury and as she was no longer receiving any measurable therapeutic benefit, the worker was not entitled to further treatment. It stated that there was no evidence that the worker’s compensable injury was more than soft tissue in nature.
The worker subsequently appealed the decisions made by Review Office on her December 2004 claim as well as the May 24, 2006 claim to the Appeal Commission and an oral hearing was arranged.
Reasons
Applicable Legislation
The issues on appeal before the panel concern 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.
Worker’s Position
The worker was assisted by an advocate at the hearing. The worker’s position was that she sustained an injury to her back on December 13, 2004. Although there was a presence of a pre-existing condition, it was asymptomatic at that time. The worker had not fully recovered from that injury when the WCB ended benefits in January 2006. The worker had an exacerbation of her symptoms on January 17, 2006 and again on May 24, 2006. The condition further worsened following a work hardening program which initially took place over a six week period in September and October, 2006, and then continued in 2007. It was submitted that the worker never fully recovered from her 2004 injury and the subsequent incidents (which were adjudicated as new claims) on January 17 and May 24, 2006 were essentially recurrences of the original 2004 injury.
Employer’s Position
The employer’s position, as advanced by an advocate appearing for the employer at the hearing, was that based on extensive medical information on file, including diagnostic testing, examination, opinion from numerous specialists, and multiple treatments including acupuncture, physiotherapy, athletic therapy, chiropractic treatments, trigger point injections, massage, lumbar stabilization and reconditioning, it was clear that the worker sustained a soft tissue strain to her low back from which she had recovered. While the employer was sympathetic to the worker’s difficulties, it believed that the worker received fair and reasonable benefits for soft tissue injury strains in both cases. Diagnostic testing and clinical examination ruled out any serious disc problem and the diagnosis of a soft tissue low back strain remained unchanged throughout the claim. Pain in her upper back, shoulders, neck, and head were unrelated to the compensable injuries and were likely due to non-compensable degenerative conditions. Further, although it was not doubted that the worker did feel pain and discomfort from time to time, it was submitted that there was not any reason why the worker couldn’t have continued working on a full time basis. An ergonomic assessment showed that the work tasks fell within acceptable levels in terms of hazard and additional changes had been made to further improve the work station. It was therefore submitted that the appeal should be denied.
Analysis
Claim for Injury dated December 13, 2004
Whether or not the worker is entitled to wage loss and medical aid benefits after January 26, 2006.
In order for the appeal to be successful, the panel must find that by January 26, 2006, the worker had not recovered from the effects of the low back injury she sustained when she slipped in the parking lot on December 13, 2004. We are not able to make that finding.
At the hearing, the worker gave evidence regarding her workplace accidents and the progression of her back condition. She indicated that on December 13, 2004, she was walking to work in the morning when she slipped in the parking lot. She fell with her legs in front of her and landed on her buttocks and low back at the same time. While she was still able to work the full day, she stated: “I just had a feeling I didn’t feel right and it was the next day that I actually filed the claim.”
She discontinued work December 14, 2004 and remained off until January 10, 2005, at which time she returned to work at 2 hours per day. Each week she gradually increased her hours by two hours per day until she was up to a 7 ¾ hour day. On February 2, 2005, during her fourth week of return to work, the worker suffered a set-back. While pushing a box to the left, she experienced a burning pain in her lower back. She was off work for a week and a half, then was put back on the return to work program. After only two days, she went off work again for another week and a half. On February 28, 2005, she attempted another return to work, but was unable to continue. At that point, her graduated return to work was suspended from March 7 to May 13, 2005.
Another gradual return to work program was commenced on May 16, 2005. The worker started at 4 hours per day and gradually increased to full time hours by September, 2005. She was able to maintain her regular employment for the rest of 2005.
The worker’s evidence was that her next complaint of injury was on January 17, 2006 when she hurt her back while wiping a shelf from a large refrigerator. She had taken out the shelf and was flipping it over to wipe it when she re-injured herself. At that time, she experienced low back pain in the form of spasm, and she described her right shoulder as pivoting forward.
The next exacerbation was on May 24, 2006, which is the injury giving rise to the worker’s 2006 claim with the WCB. At that time, the worker was maneuvering a push cart and as she was pulling the cart towards herself, she felt sharp pains into her sacroiliac joint, more on the right side. She also had pain radiating up her back. She went to see the occupational health nurse and spent the rest of the day doing stretches and applying ice to the area. As a result of this injury, the worker was required to go off work again.
After reviewing the evidence, the panel finds on a balance of probabilities that the initial injury suffered by the worker on December 13, 2004 was not the cause of her ongoing long term back problems and that by January 26, 2006 she had recovered from the effects of this injury. In coming to this conclusion, the panel relied on the following:
- The progress reports from the treating chiropractor indicated that the worker had been receiving treatment twice weekly and was improving. By report dated August 5, 2005, he reported that the patient’s complaints had resolved and that the treatment was complete. He was of the opinion that the worker could return to full duties;
- A CT Scan performed June 14, 2005 revealed no evidence of an acute injury to the worker’s lumbosacral spine. The only abnormality seen was large osteophytes at the L3 level, which would be degenerative in nature;
- A physiotherapy assessment performed March 29, 2005 identified issues with poor trunk control, weakness in abdominals and hip extensors, and uneven leg lengths. These core strength and alignment issues suggest that the worker had underlying issues which made her susceptible to injury and rendered her lumbar spine a “back at risk”;
- An example of the worker’s susceptibility to injury was an aggravation reported in the physiotherapist’s report of September 6, 2005. It indicated that on August 29, 2005, the worker suffered an aggravation when she turned quickly while walking. This caused her lower back to lock up. By the time of the September 6, 2005 treatment the flare up was reported to be settling.
Overall, the panel is of the view that the injury suffered by the worker on December 13, 2004 was a muscular strain and that the worker had recovered from this injury as early as August 2005. We find that due to non-compensable factors, she had a pre-existing susceptibility to low back soft tissue injury, and that the slip and fall of December 2004 was the first of what would ultimately be many flare-ups of a degenerative back at risk.
We therefore find that the worker is not entitled to wage loss and medical aid benefits after January 26, 2006 in respect of her December 13, 2004 claim. The worker’s appeal on this issue is dismissed.
Claim for Injury dated May 24, 2006
Whether or not the worker is entitled to wage loss and medical aid benefits after September 5, 2007
As noted earlier, the panel views the worker as having a degenerative back at risk which is susceptible to re-injury. We have considered the circumstances surrounding the May 24, 2006 accident and we find that this was yet another minor incident which caused the worker to experience a temporary flare-up of low back pain. After the injury, the worker took some time off work and received physiotherapy. In a doctor’s progress report dated July 4, 2006, although the attending physician reported continuing subjective complaints, his objective findings revealed a near normal examination. Arguably, the worker had largely recovered from her May 24, 2006 flare-up by this date.
It was recognized, however, that a pattern of recurrences was emerging and the worker’s physiotherapist and attending physician recommended a reconditioning program for the worker. She was subsequently assessed by a physiatrist and participated in a dynamic lumbar stabilization and re-conditioning program. When discharged from the program, the worker was determined to be capable of work at a light strength level.
The medical file indicates that after discharge from the program, the worker continued to receive athletic therapy and dry needling sessions. She transitioned back to full-time work. Subsequently, her complaints of pain extended to include and become increasingly focussed on the upper back, neck, and shoulder area.
After reviewing the evidence, the panel is of the opinion that the worker suffered yet another soft tissue flare-up of low back pain in the May 24, 2006 accident and that by the time that the WCB discontinued wage loss and medical aid benefits on September 5, 2007, she had recovered from this injury. We therefore find that the worker is not entitled to wage loss and medical aid benefits after September 5, 2007.
The panel considered the worker advocate’s argument that there was a continuous injury from December, 2004, but we do not accept this contention. The medical reports from the end of the summer in 2005 suggest an almost full recovery and make no mention of the shoulder/neck/upper back issues of which the worker now complaints. The medical evidence does not satisfy us on a balance of probabilities that the worker’s current complaints are related to the initial slip and fall injury in 2004.
The worker’s appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 19th day of January, 2010