The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

In deciding appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (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.

Worker's Position

The worker attended the hearing with a union representative who provided a written and verbal presentation on her behalf. The worker answered questions posed by her representative and the panel.

The worker's representative reviewed the facts surrounding the worker's injury and subsequent treatments. He noted that the worker's family physician initially diagnosed her injury as a "back strain, muscle strain." He also noted that the worker saw a wide variety of different specialists and had an MRI and CT scan, none of which were helpful in providing a diagnosis.

The worker's representative advised that the family doctor began to suspect the worker had myofascial pain disorder. He referred the worker to a specialist (physiatrist) who examined her in November 2009 and diagnosed myofascial pain disorder. The physiatrist related the diagnosis to the worker's accident.

The worker's representative disagreed with the WCB medical advisor who reviewed the worker's file. He noted that the medical advisor "...suggest there are no objective test to confirm myofascial pain disorder and he seems to be dismissive of that as a legitimate diagnosis." He submitted that the physiatrist is a skilled practitioner and has been dealing with this condition for many years.

Regarding the worsening of the worker's symptoms after the accident the worker's representative submitted that the physiatrist and the literature state that the difficulty with myofascial pain disorder is that the muscles affected remain in a tensed position and any use aggravates them. He said that after the accident the worker continued to do things in her daily life that inadvertently aggravated the condition.

The worker representative said that "…time has demonstrated that there is definite improvement, but an absolute cure is probably elusive and not available and, hence, the ongoing restrictions that [the physiatrist] has submitted to…the employer and to various other agencies that remain quite significant."

The worker's representative said the worker needs assistance with returning to work. He asked that the WCB assess the worker's restrictions and her capabilities in terms of her experience and education. He noted that there have not been any offers of positions from the worker's employer and that the employer has stated it cannot accommodate the worker's restrictions.

The worker described the accident. She indicated that she and a co-worker were pulling a large rack loaded with products. She said "Then I was pulling with, like pulling and dragging because the wheels are stone wheels, but they were chewed up so one side is flat. So we had another girl on the other side and pulling, pulling, pulling, and then I guess the wheels hit that flat spot so it stopped and I jerked and it tilted so the contents started to slip so you are kind of grabbing stuff like, so it was just a sudden stop."

The worker said that the rack was moving slowly. She said it was "…like dragging and pushing at the same time."

The worker confirmed that after the accident she worked full time for the balance of the week and for the following week. She said that other staff helped with her duties. She worked until September 16, 2009.

The worker advised that she has not worked since September 2009. She also advised that she has not had any recent discussions with her employer about returning to work and has not looked for other work. She advised that she had surgery for an unrelated condition in January 2011.

When asked if she is capable of working, the worker replied that she did not know, that she would need to try. She described her restrictions as "…can't pull, push, bend, and …can't sit for longer than an hour or stand for longer than an hour." She said that her doctor has told her that she cannot return back to the type of work she was doing. She feels she needs retraining.

The worker was asked whether her back is getting better relative to where it was post injury. She replied "absolutely".

She described her activities. She said she can vacuum, do laundry, drive the car, prepare meals, look after her flowers and do some shopping but not with a big cart. She said she recently went for a bike ride. She can no longer walk her dogs, cut the grass, or drive long distances.

After the hearing the panel obtained an updated report from the treating physiatrist. The physiatrist reports that he saw the worker for an initial consultation on November 9, 2009. The physiatrist reports that he saw her on 14 occasions between November 27, 2009 and August 30, 2011 and provided treatment on 13 of these occasions. The diagnosis proposed by the physiatrist is myofascial pain. He stated that the worker cannot resume the physical job she had before the work injury. He outlined a number of restrictions applicable to a return to work.

The worker's representative provided a further written submission in response to the medical report obtained by the Appeal Commission from the treating physiatrist. He advised that the worker agrees with the physiatrist's opinion.

Employer's Position

The employer was represented by its Store Manager and Human Resources Advisor. The Human Resources Advisor indicated they were attending as observers. The representatives answered questions posed by the panel. The store manager advised that the store cannot accommodate the worker's current restrictions.

Analysis

For the worker's appeal to be successful, the panel must find that the worker suffered a loss of earning capacity after June 8, 2009 as a result of the workplace accident. We do find that the worker suffered a loss of earning capacity after June 8, 2009 as a result of the accident. In making this finding we accept the opinion of the WCB medical consultant who examined the worker on October 26, 2009. Specifically we accept the medical advisor's opinion on the diagnosis of the worker's injury and his opinion on the worker's ability to return to work.

We note there are several different medical opinions on this file. These include the opinion of the WCB medical consultant, the opinion of the treating physiatrist and the opinion of a WCB physiatry consultant.

The WCB medical consultant's opinion dated October 26, 2009, provided the following diagnosis:

• mid thoracic strain
• lumbar strain
• non specific right flank/hypochondrium pain and non-specific numbness of the right 4th and 5th fingers.

The treating physiatrist in various reports diagnosed the worker with myofascial pain.

The WCB physiatry consultant, in a memo dated October 5, 2010, opined that there is no evidence that myofascial pain is related to the accident and that none of the opined areas of involvement could be implicated based on a review of the mechanism of injury.

The WCB medical consultant found that the worker could return to work gradually. He recommended a further trial of physiotherapy and other investigations. The treating physiatrist indicated that the worker has significant restrictions and stated that she cannot return to her pre-accident job due to ongoing physical limitations. He recommended that the worker be retrained.

The WCB medical consultant noted that no musculoskeletal lesion stemming from the accident had been identified to account for the worker's symptoms. The treating physiatrist found no evidence of neurological change and no evidence of a surgically correctable lesion.

We place greater weight upon the opinion of the WCB medical consultant. We note that the physiatrist has provided extensive treatment but with little if any apparent improvement. The worker saw the physiatrist for an initial consultation on November 9, 2009. The physiatrist reports that he saw her on 14 occasions between November 27, 2009 and August 30, 2011 and provided treatment on 13 of these occasions. The physiatrist comments that there has been improvement of her initial condition but that she has not been able to improve her physical stamina to the point where she can reliably do physical activity on a repetitive and regular basis. We note that the list of restrictions recommended by the physiatrist has increased.

With respect to the worker's perception of her condition, she advised she is better now than she was post injury. However, we note that she was able to work after the injury and now speaks in terms of limitations and states that she cannot perform her pre-injury duties.

The worker's appeal is approved and she is to be provided with WCB wage loss and other benefits consistent with the opinion of the WCB medical consultant's opinion dated October 26, 2009.