The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his current medical complaints were unrelated to his compensable strain injury of October 2006. A hearing was held on September 19, 2011 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits and services beyond March 27, 2007.

Decision

That the worker is not entitled to wage loss benefits and services beyond March 27, 2007.

Decision: Unanimous

Background

In May 2007, the worker filed a claim with the WCB for a lower and upper back injury that he related to the repetitive nature of his employment activities as an apprentice carpenter on October 13, 2006. His claim for compensation was initially denied by primary adjudication and Review Office, as both were unable to relate the worker's back condition to his work activities. The worker appealed the decision to the Appeal Commission and a hearing was arranged. On March 9, 2009, the appeal panel determined that the worker's claim met the criteria for a workplace accident under subsections 1(1) and 4(1) of The Workers Compensation Act (the "Act"). It found that the worker suffered a muscular injury to his mid and low left back regions that were causally related to his job duties and it made no findings regarding the worker's ongoing pain complaints. For a complete background of the case leading up to that decision, refer to Appeal Commission Decision No. 33/09 dated March 9, 2009.

On June 24, 2009, the worker was advised by his WCB case manager that his claim for compensation for a mid and low back strain was accepted by the Appeal Commission and that the normal recovery period for this type of injury was four to six weeks. The worker was advised that the WCB was providing him with wage loss benefits up to December 13, 2006 and medical aid benefits to December 4, 2006.

On December 2, 2009, the Worker Advisor Office asked the WCB to reconsider its decision to deny the worker wage loss and medical aid benefits beyond December 2006. The worker advisor argued that the worker's injury was more significant than originally thought and that the worker had not yet recovered. To support this position, the worker advisor referred to the following medical reports:

February 4, 2009 report by a physiatrist:

"From what is seen from the examination today, it appears that he has a significant amount of tension in the left paraspinal muscle group as well pain (sic) arising from the left quadratus lumborum. This would fit with the type of activity he described. There is a very high probability that the pain started as a result of an accumulation-type of injury rather than one specific occurrence as the result of strain."

November 19, 2009 report by an occupational health physician:

The worker "…remains with symptoms dating back to his October 2006 work injury from over-exertions of the back extensors and lower left shoulder girdle musculature."

In a decision dated December 17, 2009, the WCB case manager indicated that he could not relate the worker's ongoing back difficulties to the October 13, 2006 incident. The case manager noted that the worker appeared to have continued back pain and that many non-work related factors were involved. It was felt the mechanism of injury was more likely to have caused a strain, as first diagnosed, and was unlikely to be the cause of any pain syndrome as later diagnosed. "The factors of weight, multi level disc bulging and degenerative changes, specifically Schmorls Nodes in the thoracic vertebrae, congenital canal narrowing in the lumbar spine, and the suggestion of a "connective tissue disorder" all point to the worker's current condition as being non work related."

On March 11, 2010, the worker's case was considered by Review Office based on an appeal submission from the Worker Advisor Office dated January 19, 2010. Review Office determined that the worker was entitled to wage loss benefits beyond December 13, 2006 as well as medical aid benefits beyond December 4, 2006, stating in part:

"Information on file suggests the worker experienced no back problems prior to October 2006 and that his ongoing problems continue to be muscular in origin. Following his injury, the worker attended a sports medicine consultant on a monthly basis between November 1, 2006 and March 27, 2007, who verified that the worker was having ongoing symptomology.

Review Office finds that wage loss and medical aid benefits should initially be extended to March 27, 2007, and that Rehabilitation and Compensation Services should initiate a comprehensive medical review with the board's healthcare department prior to determining the extent of any additional entitlement. Due to the prolonged and ongoing nature of the worker's complaints, the Review Office recommends that consideration be given to having him examined by a WCB Medical Advisor prior to any further entitlement decision."

The worker was then examined by a WCB orthopaedic consultant on May 31, 2010. The consultant indicated that the current diagnosis was "areas of tenderness in the left periscapular and lumbar regions." He said that this does not amount to a diagnosis as there is no identification of a pathoanatomic pain generator. The consultant further stated: "It is possible/probable that the claimant sustained a cumulative musculo-ligamentous strain arising out of the workplace activities, but I am unable to identify a continuing cause-effect relationship between the claimant's current symptoms and stated loss of function and the original workplace injury of this claim. There are no ongoing compensable restrictions."

In a decision dated June 3, 2010, the WCB case manager advised the worker that he was unable to medically account for a relationship between the worker's current symptoms and the original workplace accident in 2006 based on the opinion provided by the WCB orthopaedic consultant. On October 7, 2010, the Worker Advisor Office appealed the decision to Review Office.

On November 30, 2010, Review Office confirmed that the worker was not entitled to wage loss benefits and services beyond March 27, 2007. Review Office was of the opinion that the worker's current subjective complaints of pain and significant functional impairment in the mid and low back region did not have a relationship to the original muscular strain. On April 14, 2011, the Worker Advisor Office appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.

Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. 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 ends, or the worker attains the age of 65 years.

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 represented by a worker advisor who made a presentation on the worker's behalf. The worker answered questions posed by the worker advisor and the panel.

The worker advisor stated that the worker has not recovered from the compensable injury and that he is seeking additional benefits. She noted that the WCB Review Office relied upon the opinion of the WCB orthopedic consultant in reaching its decision. However, this opinion was provided three years after the worker's benefits were terminated. She asked the panel to give greater weight to the opinion of the occupational health clinic physician who examined the worker and to the physiatrist who treated the worker. The worker advisor also noted that the worker's chiropractor confirmed there was no change in symptoms and the worker had made poor progress.

The worker advisor said that they recognize the Review Office concern over a lack of diagnosis but suggest that entitlement to benefits does not depend on a label but rather on the loss of earning capacity.

The worker advised that his symptoms have not changed over time, but that he has greater mobility and is managing his condition better. He said he has learned how to manage his pain through trial and error. He said that the most effective treatment he has received was the treatment that targeted the facet injections. He noted, however, that the treating physicians did not consider that the results met the definition of positive results (immediate relief). Instead, he experienced relief after a significant delay. They do not consider his problem as being in the facet joints.

The worker indicated that he understands there is no diagnosis and that no doctors have been able to tell him what is wrong or how to fix it. He remains willing to try any treatments.

The worker said that he is not currently seeing a physician. He last saw the sports medicine physician about 18 months ago. In response to a question from the panel, the worker said that he feels the most likely diagnosis is myofascial pain syndrome.

The worker told the panel that he attempts to keep active. His activities include hiking, biking, and skiing. He also has a home gym where he works out. His workouts are primarily strength-focused.

The worker described the impact to the injury on his work life. He said that he stopped performing heavy manual work. He worked part-time and attended university. He is seeking reimbursement for the cost of medical treatments.

Employer's Position

The employer did not participate in the appeal.

Analysis

To decide the worker’s appeal, we must determine whether or not the worker continued to suffer a loss of earning capacity and required further WCB services after March 27, 2007 as a result of his compensable injury. After considering all of the evidence including medical evidence and the worker's evidence at the hearing, we are unable to find, on a balance of probabilities, that the worker continued to suffer a loss of earning capacity and required services as a result of his compensable injury.

In making this decision, we note that we are bound by the prior decision of the Appeal Commission (Decision 33/09) which found that "…the worker did suffer a muscular injury to his mid and lower back that was causally related to his job duties, sufficient to establish an acceptable claim for a workplace injury under the Act." The panel found that "… the worker had, over time, been developing an “overload” muscular injury caused by the prolonged abnormal postures he was assuming while working in building the scaffolding." In response to questions by the panel, the worker advisor suggested there may be a secondary injury from the original muscular injury but could not be more specific. The worker indicated that he was suffering from myofascial pain syndrome.

In our review of the evidence, we note that the worker's primary complaint is that he continues to have pain in the low back area. The worker advised that the pain remains the same as it was in 2006, but that he manages the pain better. While we found the worker to be a very credible witness, and we accept his evidence that he continues to have pain, we are unable to relate his pain to the muscular injury that he sustained in 2006.

As to there being a potential ongoing muscular-type injury, the panel notes the following:

"It should be recalled that there is no actual injury identified by the claimant, but it could be considered probable that there was a cumulative muscular injury (as noted by the Appeal Commission) arising out of the strenuous workplace activities. This would fall under a diagnostic category of muscular ligamentous strain and would certainly be anticipated to recover with appropriate local treatment, rest and avoidance of these activities in a matter of weeks. The current diagnosis can only be stated as "areas of tenderness on the left periscapular and lumbar regions." This does not amount to a diagnosis as there is no identification of a pathoanatomic pain generator." "It is possible/probable that the claimant sustained a cumulative musculo-ligamentous strain arising out of the workplace activities, but I am unable to identify a continuing cause-effect relationship between the claimant's current symptoms and stated loss of function and the original workplace injury of this claim."

After due consideration of all the evidence, the panel adopts the reasoning provided by the WCB orthopaedic consultant. We cannot, on a balance of probabilities, connect the worker's ongoing symptoms with the accepted cumulative muscular injury, and therefore find that the worker is not entitled to wage loss benefits and other services beyond March 27, 2007.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 17th day of October, 2011