Decision #20/12 - Type: Workers Compensation

Preamble

The worker is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that his medical condition was not related to the 1998 compensable accident. A hearing was held on September 26, 2011 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits and services beyond April 20, 2001.

Decision

That the worker is not entitled to wage loss benefits and services beyond April 20, 2001.

Decision: Unanimous

Background

On May 31, 1998, the worker slipped off a broken ladder injuring his low back during the course of his employment as an electrician. His claim for compensation was accepted by the WCB and various benefits and services were paid to the worker. The diagnosis accepted by the WCB was a strain of the right flank and low back.

On August 18, 1998, a CT scan revealed minimal diffuse posterior disc bulging at L5-S1, more pronounced on the left. This did not involve the adjacent nerve roots or thecal sac. Early facet arthropathy at L5-S1 was slightly more pronounced on the right.

A second CT scan was carried out on January 11, 1999. There were no disc herniations, spinal stenosis or nerve root compression identified.

In February 1999, the worker attempted a return to work with restrictions but was unable to continue due to pain.

On April 22, 1999, a physical medicine and rehabilitation specialist (physiatrist) determined that the worker's symptoms and signs were characteristic of myofascial pain syndrome. On June 28, 1999, the worker commenced treatment for the condition.

On February 5, 2000, a WCB medical advisor noted to the file that the worker had pre-existing early arthropathy of the left hip which was delaying his recovery.

On November 22, 2000, the worker was interviewed by a medical advisor at the WCB's Pain Management Unit ["PMU"]. The worker reported that he had constant pain with no periods of remission. On December 18, 2000, it was determined by the PMU that the worker did not meet the diagnostic criteria for chronic pain syndrome.

The WCB then arranged for the worker to undergo a reconditioning program followed by a return to his pre-accident employment. On March 23, 2001, the worker was advised by the WCB that he would receive wage loss benefits to April 20, 2001, the last day of his reconditioning program.

The case was considered by Review Office on June 29, 2001 based on an appeal by the worker in regard to the WCB's decision of March 23, 2001. Review Office outlined the position that whatever signs and symptoms the worker presented with did not bear a relationship to the strain incident of May 31, 1998.

On August 14, 2001, a worker advisor provided Review Office with a report from the treating physiatrist dated August 7, 2001 to support that the worker's ongoing disability was related to his compensable injury and that he was entitled to reinstatement of benefits.

On September 21, 2001, Review Office confirmed its decision of June 29, 2011. Review Office indicated that it accepted the opinion of the Acting Director of Healthcare Management Services who noted that the worker sustained a soft tissue injury to his right flank/low back in May 1998 and that no other specific diagnosis had been confirmed. The Director said it was difficult to support the diagnosis of myofascial pain syndrome because the worker had been through the appropriate treatment with no sustained benefit, and that responsiveness to treatment is used to support the diagnosis. The Director felt there was no cause and effect relationship between the worker's signs and symptoms and the compensable injury of May 31, 1998.

On December 28, 2001, the worker advisor provided Review Office with a report from the physiatrist dated October 29, 2001. The physiatrist indicated:

"My diagnosis of myofascial pain syndrome involving gluteus medius and pyriformis muscles as well as sensitized spinal segment involving L5 is a definite diagnosis made by objective physical examination…I would have to state that on the balance of probabilities that it is my opinion that his ongoing symptoms continue to be due to the 1998 compensable injury."

In a letter dated March 13, 2002, Review Office advised the worker that there would be no change to its decision of September 21, 2001. Review Office stated in its decision that the worker may have myofascial pain syndrome but it could not relate the diagnosis to the soft tissue injury occurring on May 31, 1998.

On April 3, 2002, a sector services manager granted the convening of a Medical Review Panel ("MRP") which later took place on July 18, 2002. On September 17, 2002, the sector services manager advised the worker that based on the MRP findings, there was no further entitlement to WCB benefits and/or services beyond April 20, 2001.

In a letter dated January 30, 2003, Review Office advised the worker that the MRP results were considered and there would be no changes made to its previous decisions regarding the worker's entitlement to further benefits.

On July 1, 2003, Review Office was asked to consider new medical information from the worker's chiropractor and a physician. On July 11, 2003, Review Office wrote the worker and stated:

  • the MRP panelists agreed that he had recovered from the workplace injury which occurred in May 1998.
  • the information submitted from the chiropractor simply provided findings of his examination as of December 2002;
  • the physiatrist's report indicated that the worker's presentation was best categorized as "mechanical low back pain." He did not feel the worker's symptoms were likely originating from a lumbar facet joint.
  • the chiropractor and the physician did not provide any support for the worker's contention that his current findings arose out of the May 31, 1998 work injury.

On June 30, 2010, a worker advisor submitted to Review Office that the worker was entitled to benefits from April 20, 2001 to July 18, 2002. The worker advisor stated:

"…the WCB accepted this claim on the diagnosis of muscle strain, lower back and right flank. Treatment was approved based on [the physiatrist's] diagnosis of myofascial pain syndrome being related to the compensable accident, which was supported by objective findings of active trigger points, and PAR Services continued to support objective findings of ongoing right-sided muscle trigger points to the same area of injury being right lower back, right buttock.

Since there had been no change in the diagnosis until the Medical Review Panel report of July 20, 2002, benefits should be payable up to July 18, 2002, as a relationship does exist between the accident and [the worker's] ongoing difficulties and ongoing diagnosis.

Since [the physiatrist] identified in this report of December 29, 2001 that restrictions remain in place, the weight of evidence supports, on a balance of probability, a loss of earning capacity continued to exist beyond April 20, 2001 as a result of the compensable injury."

In a letter dated August 18, 2010, Review Office indicated that the June 30, 2010 submission did not provide any new information other than a philosophy on how the medical information on file should be interpreted and was focused on the reports of the physiatrist dated August 7, 2001 and December 29, 2001. Review Office was of the view that the worker's subjective complaints of pain, as of April 21, 2001, did not have a relationship to a soft tissue injury occurring three years prior and that the interpretation of the medical evidence on file did not alter its previously outlined decisions. On November 24, 2010, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Following the hearing held on September 26, 2011, the appeal panel requested additional information from the worker's treating physician. The requested information was later received and it was forwarded to the worker for comment. On January 5, 2012, the panel met further to discuss the case and rendered its final decision.

Reasons

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.

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 attended the hearing and outlined his position. He answered questions posed by the panel.

He indicated that the medical information on file supports the position that he is entitled to benefits beyond April 20, 2001. He disagreed with the findings of the MRP and commented that their report was ambiguous. He noted that at one point the report states that the worker has no pre-existing condition but concludes that his symptoms are related to a pre-existing condition. He said that one of the doctors on the MRP disagreed with the MRP report.

The worker showed the panel where the pain was located in his back. When asked what is causing his pain, the worker answered that he believes it is related to scar tissue. He referred to an opinion from his treating chiropractor, dated March 11, 2011, which he said states that his current condition is consistent with the chiropractor's findings on December 13, 2002. He advised that he improved with treatments from the chiropractor but that the treatments were not completed because the WCB ended his claim. He feels that he would benefit from further treatments from the chiropractor.

The worker advised that he has not sought medical treatment for his back since approximately 2003. He said that he recently saw his family physician who sent him for an MRI scan. He said his physician told him that the MRI indicated that he does not have bad arthritis and that his back is in good shape. With respect to treatment, he advised that the physician told him to exercise his back and get massage treatments.

The worker advised that he no longer has numbness in his leg and that he no longer uses a cane.

The worker described the impact of the accident and the WCB decision upon his life. He said that due to pain and sleep problems caused by pain, he has not been able to maintain steady employment. He said that he cannot bend down or go down onto his knees. The longest period that he has been employed since the accident is five and one-half months.

Employer's Position

The employer did not participate in the appeal.

Analysis

To find that the worker is entitled to wage loss or medical aid benefits beyond April 20, 2001, we must find on a balance of probabilities that the worker continued to suffer a loss of earning capacity as a result of his compensable injury. In the panel’s opinion, by April 20, 2001, the worker had recovered from the effects of his compensable low back strain and therefore no further benefits are payable in respect of this injury.

In support of this finding, we rely upon the MRP report dated July 18, 2002. We note this report concluded that the worker had recovered from his May 1998 injury. The MRP stated that it believed the worker's current low back condition was due to the facet arthropathy seen in x-rays at the L5-S1 level noted in August 1998 and that there was no evidence that the facet arthropathy was due to the workplace injury sustained in May 1998. The MRP diagnosed the worker's condition as being myofascial pain secondary to facet arthropathy at L4-5 and L5-S1 and a hypersensitive spine.

We also reviewed the August 5, 2011 MRI and find that it is consistent with the findings of the MRP. Specifically, we note that it found mild facet arthropathy at L5-S1 and noted that the disc is unremarkable. There was no central stenosis or foraminal narrowing. The MRI also found mild facet arthropathy at L4-5 and no evidence of disc protrusion or nerve root compromise. The MRI found the lower thoracic and upper lumbar levels to be unremarkable.

We received a medical report from the physician who began seeing the worker in 2001 and who assessed him on April 19, 2011. The physician noted that worker underwent an MRI which "showed basically an unremarkable examination other than some mild facet arthropathy." He concluded that the worker's back difficulties stem from a myofascial origin stemming from an old accident and there is nothing to implicate any spinal or neurological etiology to his symptoms. We do not find that this opinion supports the worker's claim for benefits arising from his 1998 accident nor his claim that his condition is due to scarring in his back.

We accept the worker's evidence that he continues to have significant pain but, having considered all the evidence we are not able to relate his current symptoms to the workplace accident. 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 2nd day of February, 2012

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