Decision #24/10 - Type: Workers Compensation

Preamble

On August 23, 2007, the worker filed a claim with the Workers Compensation Board (“WCB”) for a back injury that she related to her work duties on August 22, 2007 as a kitchen helper. The claim for compensation was accepted based on the diagnosis of an upper back strain and benefits were paid to the worker until May 6, 2008, when it was determined by primary adjudication that there was no relationship between the worker’s current reported difficulties and the effects of the August 22, 2007 work injury. Primary adjudication’s decision was confirmed by Review Office. The worker disagreed and an appeal was filed with the Appeal Commission. A hearing was held on January 27, 2010, to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits beyond May 6, 2008 in relation to her back and shoulder complaints.

Decision

That the worker is not entitled to wage loss benefits beyond May 6, 2008 in relation to her back and shoulder complaints.

Decision: Unanimous

Background

The worker reported that she injured her back on August 8, 2007 due to the following work related activities:

“After my coffee break I returned to my job, of adding ice and water in the water jugs. When I was distributing them to the tables my back began to hurt, if I pushed the cart with the jugs. This also happened when I leaned forward and turned to my left or right. The pain was increasing up until the end of my shift.”

The employer’s accident report dated August 23, 2007 stated, “detected back pain while setting tables after the dinner meal. Continued to work till completion of shift.”

A hand-written note from a co-worker (chef) dated August 23, 2007 stated the following:

“On the 22 of Aug. at approx. 2:30 pm I was walking through the dining room. I asked [worker] how she was doing. She said her back was hurting and then continued on with setting the tables. As she was leaving at 3:30 pm I had suggested to her to soak in a warm bath for her back. She said yes and goodnight. Nothing else came of it.”

A WCB adjudicator spoke with the worker by telephone on August 28, 2007. The worker stated that she just came back from coffee break on August 22, 2007 and was working with the ice and water jugs when she felt a pain in her shoulder. When asked which one, the worker said both. The worker indicated that prior to her shift, her lower back was sore and by the end of the shift her upper back and both shoulders were really bothering her. She said her low back had been sore for years and was progressively becoming worse. The worker indicated that she eventually went to a hospital and then to a doctor who advised her to stay off work for 3 to 6 weeks and to go to physiotherapy treatments. The worker indicated that the work she did was very physical and heavy and they were always busy. There were no changes in duties or increases in her workload.

Medical information showed that the worker was treated by her family physician on August 23, 2007 and was diagnosed with a back muscle strain from lifting, carrying and pulling. On September 6, 2007, a physiotherapist reported a diagnosis of thoracic/cervical spine sprain.

A hospital report dated August 22, 2007 stated the following: “While doing kitchen work had onset of pain in upper interscapular area. Hurts to breathe or move…”.

On September 14, 2007, primary adjudication wrote to the family physician and requested information related to the worker’s shoulder and back complaints.

In a letter dated September 17, 2007, the family physician reported that when the worker was seen on August 23, 2007, she complained of headaches, upper trapezius pain, intrascapular pain and movements of her head and arms precipitated pain. The examination showed neck, upper traps, deltoid muscles and intrascapular muscle spasms and tenderness with restricted movements of head and arms. The worker was diagnosed with muscle tension headaches and acute muscle strain of her neck and upper back. The physician stated that he reviewed the worker’s chart back to 1989 and there was no significant history or any records regarding neck or back problems. He indicated that at the present time, the worker was disabled from her duties as a kitchen helper.

An x-ray report dated September 24, 2007 reported no bone, soft tissue or articular abnormality in the cervical or thoracic spine.

On September 26, 2007, the adjudicator accepted the worker’s claim based on the diagnosis of an upper back strain related to repetitive work duties of lifting and reaching. The adjudicator noted that the worker mentioned upper back pain to her co-worker in May 2007 that she related to her work duties.

On October 9, 2007, the worker advised her case manager that most of her pain was in the upper back and both shoulder regions, and that her low back was also painful.

Reports received in November 2007 showed that the worker was seen by a physiotherapist for complaints of pain to the shoulder blade with any activity. A home program of scapular strengthening was provided. When seen by a chiropractor on November 22, 2007, the worker was diagnosed with a mid-thoracic sprain/strain.

On January 17, 2008, the treating chiropractor reported, “Decreased thoracic spine pain. Increased pain symptoms with increased physical activities. Very fearful and anxious about recurrence with resumption of workplace activities.” Objective findings were listed as “Residual thoracic spine tightness. Client is at MTB with respect to chiropractic treatment.” No further chiropractic treatments were scheduled.

On February 20, 2008, the worker advised her case manager that her fingers were falling asleep.

On February 26, 2008, a neurologist reported that he saw the worker on January 21, 2008. He noted that the worker complained of left shoulder and periscapular pain for the past five months and that her right shoulder pain had improved. He noted that the worker complained that all her fingers fall asleep and she located symptoms on the dorsal and palmar aspect of both hands, however, this had spontaneously improved. The worker also had low back and neck pain. Based on his examination findings, the specialist diagnosed the worker with multiple joint pains (polyarthralgia) and mild carpal tunnel syndrome, which was not proven on EMG.

In a progress report dated February 29, 2008, the family physician reported neck and back tenderness along with numbness of the hands, and listed CTS (carpal tunnel syndrome) as a diagnosis. Orthotic wrist splints were recommended as a form of treatment.

On April 22, 2008, a WCB medical advisor assessed the worker to determine the basis of her ongoing upper back and neck pain. He concluded following the assessment that a structural cause to account for the worker’s upper back and neck pain could not be found.

In a decision dated May 5, 2008, it was determined by the case manager that the medical information did not establish a cause and effect relationship between the accident of August 22, 2007 and the worker’s current reported difficulties. He noted that the worker’s initial injury was soft tissue in nature, most of which would resolve within six to eight weeks with no significant impairment or disability. He noted that it was eight months since the accident and there was no compelling medical evidence which correlated prolonged disability to any initial physiological effects of a soft tissue injury.

On October 23, 2008, the worker appealed the case manager’s decision of May 5, 2008. Included with her submission for consideration were the following reports:

  1. Neurologist report dated September 17, 2008;
  2. EMG and nerve conduction studies dated December 3, 2007 and May 29, 2008; and
  3. MRI of the cervical spine dated July 10, 2008.

In a further submission dated November 3, 2008, the worker stated that the above information clearly indicated that she suffered from a back illness related to her work.

On December 3, 2008, Review Office determined that wage loss benefits were not payable beyond May 6, 2008 and that the diagnosis of CTS did not have a relationship to the worker’s back and shoulder claim stemming from her work duties on August 22, 2007. In reaching its decision, Review Office stated the following:

· The worker provided certain responses to the testing performed by the WCB medical advisor that were not consistent with any known anatomical pathway;

· The worker’s back and shoulder condition was never diagnosed as anything beyond that of a strain and there was no explanation why the worker would continue to have pain complaints nine months beyond the August 22, 2007 compensable accident;

· The compression of the median nerve would have no relationship to a back or shoulder strain scenario and therefore the CTS diagnosis was not compensable;

· The worker had the right to proceed with a CTS claim if she so desired.

On February 17, 2009, the worker asked Review Office to reconsider its decision of December 3, 2008 based on information from a physiotherapist and a physician.

In a letter dated February 20, 2009, Review Office advised the worker that the new information did not alter its decision of December 3, 2008. Review Office stated:

· The physician diagnosed the worker with bilateral CTS, the left hand being worse than the right. Such a diagnosis would have no relationship to the worker’s back and shoulder strain of August 22, 2007;

· The physician’s diagnosis of shoulder bursitis and tendonitis would not be related to the lifting of water jugs on August 22, 2007;

· The physiotherapist noted that the worker presented with decreased shoulder and scapular strength with palpable tenderness and trigger points throughout the scapular and paraspinal musculature. Review Office could not relate these findings to the lifting of water jugs on August 22, 2007.

· Whatever was producing the worker’s subjective complaints of pain in her shoulder and upper back did not have a relationship to her work description on August 22, 2007, in particular the handling of water jugs.

On July 30, 2009, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

Issue:

Whether or not the worker is entitled to wage loss benefits beyond May 6, 2008 in relation to her back and shoulder complaints.

The worker’s position:

The worker was assisted by her son at the hearing, and used the services of an interpreter. Her position was that her job duties were responsible for her back and shoulder complaints, and that she should be entitled to ongoing wage loss benefits. The worker responded to extensive questioning by the panel as to her job duties, the development of her medical difficulties and her current medical condition. It was clarified that the worker was dealing only with her back and shoulder complaints at this appeal, and that the panel would not be addressing her carpal tunnel syndrome condition.

The employer’s position:

A representative of the employer participated in the hearing via teleconference. The employer confirmed that the worker had in general described her job duties accurately. In response to questions from the panel, the representative provided additional information regarding the staffing structure at the facility and the nature of the employer’s return to work programs. The representative advised that once the worker had left her position in August 2007, the worker’s physician had never provided them with restrictions or indicated that the worker was in a position to consider a return to work, and thus no return to work initiative had ever been instigated.

Legislation:

Subsection 39(2) of The Workers Compensation Act provides that the worker is entitled to ongoing wage loss benefits as long as there is an ongoing loss of earning capacity that is still causally related to the compensable injury that she suffered on August 22, 2007.

Analysis:

For the worker’s appeal to be successful, we would have to find that the worker’s ongoing inability to earn her pre-accident wages (her loss of earning capacity) after May 6, 2008 was medically and causally related to the compensable injury that she suffered on August 22, 2007. We were unable to make this finding, for the reasons that follow:

  • The panel notes that the worker was first diagnosed in August 2007 with a back and shoulder strain, which she attributed to her job duties as a kitchen helper in an extended care facility. The worker had physiotherapy treatment, and was also seen by a chiropractor, an orthopaedic surgeon, and a neurologist.

  • While the original diagnosis referred to pain in the cervical and thoracic spine and surrounding muscles, the physiotherapist’s primary focus of treatment in the fall of 2007 was strengthening of the left scapula. The chiropractor initially diagnosed the worker with a mid-thoracic sprain/strain in November 2007, and treated the worker until January 2008 when he noted that there was residual thoracic tightness, and stopped treating the worker, noting that she had reached maximum therapeutic benefit. Of note from the panel’s perspective is that the chiropractor did not identify or treat any cervical spine symptoms during this period.

  • The worker was seen by a neurologist on January 21, 2008, who noted complaints of periscapular pain and numbness in both hands, with the worker advising that her right shoulder problems had resolved. After examination, the neurologist provided a non-specific diagnosis of polyarthralgia (multiple joint pain).

  • Because of the varying diagnoses and areas of complaint, the worker was examined by a WCB medical advisor on April 22, 2008. The medical advisor concluded that a structural cause to account for the worker’s upper back and neck pain could not be found. He noted that the worker’s muscle tone was normal and equal in all regions with no hypertonicity or tightness. An exhaustive search for trigger points, taut bands and tender spots was negative bilaterally. He found the active range of motion of the worker’s cervical spine, as well as thoracolumbar regions to be full and equal bilaterally. On the basis of these examination findings, he indicated that a diagnosis of back muscle strain and erector spinae strain was not substantiated. In his view of the job duties, the medical advisor could not find a mechanism of injury to support a strain; repetitive use of the back and neck would lead to muscle irritation. However, he could find no explanation for non-improvement while away from work, which at the time of his examination had been 8 months.

  • In reviewing the worker’s job duties in detail, the panel has come to a similar view as that stated by the WCB medical advisor, namely that the worker’s job duties do not suggest the development of a long term muscular or strain/sprain injury, particularly given the absence of findings in the extensive examination performed by the WCB medical advisor in April 2008, eight months post-claim and one month prior to the termination of benefits.

  • The panel notes that the evidence subsequent to the termination of wage loss benefits further supports this conclusion. The worker indicated to the panel that she continued into early 2010 to have a serious loss of function that manifests itself in her activities of daily living, with no indication from any of her practitioners of any likelihood of improvement. However, of greater significance to the panel is the radiological evidence (an MRI in July 2008) suggesting the presence of osteophytes and the early onset of degenerative cervical disc disease, the worker’s descriptions (from conversations with her attending physician) that her pain is coming from discs pushing together, and a reference by her orthopaedic surgeon that relate the worker’s pain to degenerative disc disease. The panel notes that by early 2008, the medical reports no longer mentioned cervical symptoms, suggesting to the panel that any cervical strain had resolved, and that the disc degeneration is a separate and concurrently developing medical condition that has no causal relationship to the worker’s compensable injury, and is itself a pain generator for the worker.

  • The panel further notes that in 2009, a number of additional medical diagnoses were proposed. The worker’s new physiotherapist proposed decreased shoulder scapular strength, scapular hypomobility, palpable tenderness and trigger points throughout her scapular and paraspinal musculature. As well, on February 12, 2009, the worker’s attending physician offers new diagnoses of left shoulder bursitis and tendonitis in a hand-written note. Again, the panel notes that none of these conditions were noted or found in the WCB medical advisor’s thorough examination in April 2008. As these diagnoses are first introduced some 2.5 years post-injury during which period the worker has not been working, it becomes problematic to attribute these conditions to the worker’s job duties in 2007. The worker’s evidence at the hearing is that she has been able to do very little at home, also because of the considerable difficulties she is having with her hands. As such, the panel finds, on a balance of probabilities, that these new medical conditions are not causally related to the worker’s October 2007 compensable injury.
  • The worker also completed a pain diagram during the hearing, indicating the nature and type of pain in 2007 and 2010. This document was intended to provide clarity to the worker’s evidence on these points. This document was shared with the employer representative by fax, during the hearing. The panel noted substantial changes in the two periods; in particular, the 2010 diagram indicates pain radiating out from the spine, which is strongly suggestive of the worker’s degenerative disc condition, rather than the originally diagnosed soft tissue injury to the upper back.

Based on the totality of the evidence as described above, the panel finds that the worker’s compensable injury had resolved by the time that her wage loss benefits were terminated on May 6, 2008, and that her ongoing medical difficulties are no longer related to her compensable injury. Accordingly, the worker’s appeal is not accepted.

Panel Members

K. Dangerfield, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

K. Dangerfield - Presiding Officer

Signed at Winnipeg this 25th day of March, 2010

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