The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that his ongoing difficulties were unrelated to his compensable injury that occurred on February 10, 2009 and that he was not entitled to benefits beyond March 10, 2010. The worker disagreed and an appeal was filed with the Appeal Commission. A hearing was held on July 29, 2010 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits beyond March 10, 2010.

Decision

That the worker is not entitled to wage loss benefits beyond March 10, 2010.

Decision: Unanimous

Background

The worker reported that at about 8:30 a.m. on February 10, 2009, he fell on ice and flipped over when he exited his vehicle in the employer’s parking lot. He identified injuries to his forehead, right hip, right leg down to his knee, his back, his head, groin and right hand.

When speaking with a WCB adjudicator on February 12, 2009, the worker suggested that he felt pretty rough and that his right hip and pelvis were the most painful. He said his forehead was fine and there was a laceration. His right hand and knuckles were skinned up. The worker indicated that he would return to work on February 13, 2009 to his regular duties.

The claim for compensation was accepted by the WCB for a right hip/groin strain and two days of compensation benefits were paid to the worker. On February 18, 2009, the worker advised the WCB that he was terminated from employment on February 13, 2009. He stated that his return to work on February 13 was rough and that his current symptoms included a stiff back and groin pain.

When speaking with a WCB adjudicator on February 24, 2009, the worker indicated that he was involved in a motor vehicle accident (“MVA”) on December 3, 2008 and sustained injuries to his left side, mid back and scapular area. The worker claimed that he aggravated his MVA injury when his compensable injury occurred.

In early March 2009, the worker advised the WCB that he was experiencing extreme pain in his middle back, right hip and right groin region.

A CT scan of both hips taken March 19, 2009 revealed comminuted fractures of the right superior and inferior pubic ramus and a large hematoma adjacent to the right internal obturator muscle. This diagnosis as well as a low back strain was accepted by the WCB and benefits to the worker were reinstated.

A CT scan of the lumbar spine taken March 26, 2009 showed Grade 1 to 2 spondylolisthesis at the L5-S1 level and mild facet arthropathy at L4-5. Also shown was lumbar scoliosis convex to the left. No abnormality was seen from T11 to L4.

On April 17, 2009, the worker told his adjudicator that he mentioned to his doctor that he felt pain and numbness from his back to both shoulders and into both hands. He had reduced range of motion near the small of his back which he thought was related to his compensable injury. The worker felt that his left shoulder and neck difficulties which stemmed from the December 2008 MVA were aggravated when he sustained the compensable injury.

On June 16, 2009, the worker was examined by a sports medicine specialist for low back pain complaints. The specialist outlined his examination findings and reported that the worker’s ongoing clinical issues were severe mechanical low back pain with underlying spondylolisthesis and degenerative change. The worker had some symptoms in his left leg suggesting radiculopathy but this was not confirmed. The specialist outlined treatment suggestions but felt the worker should be reviewed by a physical medicine and rehabilitation specialist ("physiatrist") who treated spine conditions.

Nerve conduction studies ("NCS") of the worker's hands done on May 19, 2009 were considered normal. NCS taken June 17, 2009 showed “There is moderate slowing in bilateral peroneal motor conductions across the fibular head with absent peroneal sensory responses consistent with bilateral peroneal palsies at the fib head. There is no evidence on this test of L5 or S1 lesion either side.”

A report received from a neurologist dated July 29, 2009 indicated that the worker was seen on February 10, 2009. The worker reported that he slipped on ice and fell and sustained a fracture of his pelvis. The worker now complained of pain in his low back, right lumbar region and tailbone. The worker complained of a pulsing sensation extending down both lower limbs to the soles. He had complaints of tingling sensation in both upper limbs from the neck down to the hands and fingers, worse in the right and left index and middle fingers. The neurologist outlined his examination findings related to the worker’s back which showed a solitary wide thoracolumbar spinal scoliosis convex to the right with no other significant findings. Examination of the neck showed no significant findings. Examination of the lower limbs revealed no motor defect and other testing was normal. At ninety degrees flexion, the worker complained of low back pain. The neurologist commented that the worker moved his neck, limbs and spine normally when dressing and undressing. He fully flexed his limbs and spine to put on and off his shoes and socks without any apparent pain or discomfort. The worker’s mobility at all joints improved significantly when he was dressing and undressing.

A narrative report received from the family physician dated September 25, 2009 noted that the worker was diagnosed with a fractured pelvis and later said that he had some right arm and shoulder pain as a result of falling but this discomfort was overshadowed by his pelvic area pain. When seen for follow up visits in June and July 2009, the worker complained mostly of right elbow and wrist pain. When seen in August 2009, the worker complained of right shoulder and arm pain. The physician noted that an x-ray of the shoulder was consistent with calcific tendonitis.

On November 9, 2009, a physiatrist suggested a trial of injection to the L5-S1 facets.

The worker was examined by a WCB medical advisor on November 30, 2009. The worker complained of pain in the low back, tenderness in the right groin, a burning sensation on the lateral side of the right thigh and over the hip and sharp pain in his right shoulder and discomfort in the medial side of his right elbow. Under “Discussion and Opinion”, the medical advisor noted that the examination showed a Waddell score of 4/5. He indicated that the low back area itself in the prone position would suggest some low back pain and discomfort, particularly in the sacroiliac and the sacrum area in keeping with the previously noted spondylolytic and spondylolisthesis which had been noted on the CT scan. He noted that the worker gave an examination which suggested excessive pain behavior and excessive complaints of pain involvement and function reduction. The medical advisor suggested that the worker undergo a reconditioning work hardening program for a return to work. It was felt that the worker’s pubic area had recovered and the bone had healed. He noted very little objective clinical evidence of residual effect in the pubic area.

The impression of a bone scan taken December 9, 2009 was “suspected multiple pelvic fractures as described”.

On December 9, 2009, a physiatrist recommended a 6 week work hardening program for the worker which later commenced on January 11, 2010 and ended February 19, 2010.

A WCB orthopaedic consultant reviewed the file on January 6, 2010. It was his opinion that the diagnosis of the compensable injury should now read as follows:

· multiple pelvic fractures

· low back strain

· multiple contusions

· resolving pelvic fractures

· no evidence of a compensable injury of the upper limbs

On March 2, 2010, primary adjudication referred the case back to the WCB orthopaedic consultant to review the work hardening program's discharge report and to provide his medical opinion as to whether or not the worker was fit to return to his pre-injury duties. On March 5, 2010, the consultant stated that the work hardening program identified that the worker’s work category was medium, that his assessment on intake was light and on completion was medium. Therefore, the worker was considered capable of returning to work.

In a decision dated March 8, 2010, the WCB determined that the worker was fully capable of returning to his pre-accident duties at a parts counter and that wage loss benefits would conclude on March 10, 2010. This decision was based on the examination findings of November 30, 2009, the WCB medical advisor’s opinion of December 29, 2009 and the results of the work hardening program which stated that the worker was “fit for an immediate, unmodified return to pre injury employment”.

On March 10, 2010, the worker appealed the above decision to Review Office. The worker stated that the injuries he sustained on February 10, 2009 were not yet healed and that his low back and right shoulder had increased pain and stiffness. He indicated that he has more and more trouble getting around since his physiotherapy had ended.

On April 15, 2010, Review Office determined that the worker was not entitled to wage loss benefits beyond March 10, 2010 as it was of the opinion that whatever was producing the worker’s subjective complaints of pain throughout numerous areas of his anatomy did not have a relationship to his fall occurring on February 10, 2009. In reaching its decision, Review Office took note of the following evidence:

· the findings of the neurologist's report of July 29, 2009 that the worker’s range of motion and pain presentation was significantly different when observed dressing and undressing compared to his presentation during the formal testing;

· the November 30, 2009 examination findings which showed a Waddell score of 4/5;

· the worker making no mention of his shoulder and neck when speaking with a WCB representative the day after his injury;

· the opinion of the WCB orthopaedic specialist that the worker’s pelvic fractures had time to heal to the point where they should not be playing a role in the worker’s subjective complaints of pain and functional impairment;

· the imaging studies on file which did not provide any clinical objective medical evidence of anything sinister to the point of supporting the worker’s subjective complaints of pain a year post-trauma;

· the opinion of the physiatrist that the worker was fit to return to his pre-accident employment following his six week physical rehabilitation program.

On May 1, 2010, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

The oral hearing took place on July 29, 2010. During the hearing, the worker provided a lengthy description of how he hurt himself when he fell on his right side.

The worker took issue with the work hardening program conclusion that he was capable of a medium duty job. In his view there was no way he could perform even light duties: "even a light duty, like on the floor all the time, being on the chair, doing computers, doing, you know, that kind of stuff, there's no way. There's just no way, you know."

In terms of any injuries which predated his accident, he confirmed a history of arthritis on his left side. When asked to detail where that problem occurred he indicated: "mostly just like back…but on the left-hand side like".

When asked what the primary challenges were in returning to the labour force as of March 10, 2010, the worker identified his lower back issues. He agreed it would be fair to say his primary concerns were “lower back and then [my] legs, in particular on the left side.” In his view, “those are the big ones”.

In the course of the hearing, the worker indicated “my left ankle and foot are still bugging me...I'm getting worse and worse.” He suggested that parts of his body that got worse in the work hardening program and which continue to get worse were “my lower back, my small of my back, my legs, my feet.” He testified that “I think my left side's getting even worse than my right, the bottom, like the foot area, the lower ankle and foot areas.”

The worker confirmed that he had not heard anything suggesting that his pelvic fractures had not healed.

Reasons

Conclusion

Based on a balance of probabilities and considering the record as a whole, the panel finds that the worker's wage loss after March 10, 2010 is not related to his compensable injury of February 10, 2009. Accordingly, the worker's appeal is denied.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

B. Williams - Presiding Officer

Signed at Winnipeg this 24th day of September, 2010