Decision #134/12 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that her subjective complaints of pain and tenderness through her upper body did not have a relationship to her thoracic strain injury of December 1, 2010. A hearing was held on October 25, 2012 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits beyond April 26, 2011.

Decision

That the worker is not entitled to wage loss benefits beyond April 26, 2011.

Decision: Unanimous

Background

On December 9, 2010, the worker filed a claim with the WCB for an upper/middle back injury that occurred on December 1, 2010 while employed as a healthcare aide. The worker reported that she was assisting a patient who was in the sitting position on a bed and was injured when the patient fell backwards while her hand was caught in his shirt.

Initial medical reports showed the worker attended a medical facility for treatment on December 3, 2010 and again on December 23, 2010. The diagnoses rendered were a muscle strain and sprain to the left shoulder and back. The worker was also referred to a physiotherapist and the diagnosis rendered was a T4-5, T5-6 joint sprain with vertebral muscle spasm affecting the left shoulder ROM (range of motion).

On January 17, 2011, the worker was advised by her treating physiotherapist that she was capable of starting a graduated return to work program starting at two hours per day for the first week and four hours the second week. Work restrictions were outlined as follows: No lifting greater than 10 lbs, no pushing or pulling, no prolonged forward bending, no reaching or lifting with left arm above shoulder height.

Arrangements were made for the worker to commence modified duties starting February 4, 2011.

On February 7, 2011, the treating physiotherapist advised the WCB that the worker's progress had been slower than expected. On February 3, 2011, the worker's outcome measure scores showed increased spinal mobility in general, however her T4-7 facet joints were still very hypomobile and tender to minimal pressure. The worker's left shoulder had improved minimally. It was recommended that the worker refrain from increasing her hours at work until further re-assessments.

The worker ceased working modified duties on March 4, 2011 because of worsening symptoms.

On March 18, 2011, the worker underwent an MRI of the thoracic spine. The results showed no disc protrusion, cord compression, central stenosis or foraminal narrowing.

The worker was seen by a WCB physiotherapy consultant at a call-in medical assessment on March 23, 2011. The consultant outlined the following opinions:

  • the probable diagnosis related to the compensable injury was a thoracic soft tissue strain.
  • the natural history of a thoracic soft tissue strain would be resolution in four to six weeks.
  • inconsistencies over the course of the examination did not indicate a structural lesion that would benefit from further treatment.
  • there were no indications for workplace restrictions based on the assessment.

In a medical certificate dated April 7, 2011, the treating physician indicated that the worker could return to work with light duties and she was to avoid lifting over 5 pounds with no pulling indefinitely.

By letter dated April 19, 2011, the worker was advised that WCB wage loss benefits would be paid to April 26, 2011 inclusive and final as it was felt that she had recovered from the effects of the December 1, 2010 compensable injury and any suggestion to avoid returning to work would be due to conditions unrelated to the compensable injury.

On May 24, 2011, a neurologist reported that he saw the worker for complaints of neck and back pain. The neurologist stated:

In early December of last year she was attempting to transfer a patient when the patient fell on her twisting her neck and lower back. She had immediate pain in the mid back however since then her pain has continued and she has developed some weakness in her arms left more so than right and numbness on the left side of the face…and no motor complaints in the lower extremities.

The neurologist further stated:

The clinical picture is most consistent with a diffuse myofascial pain syndrome. She has no definite evidence of a myelopathy, radiculopathy or a more proximal cause. I will arrange an MRI of the brain and cervical spine but expect they will be normal…I strongly believe that her present symptoms are related to the injury or (sic) work December 1, 2010.

A CT Brain (uninfused and infused) taken May 30, 2011 showed no mass lesion, hemorrhage or a large vessel infarction. The CT scan was then compared with an MRI of the brain on August 16, 2011. The impression read: "There is a small focus of blooming artifact at the left aspect of the pons which would be consistent with prior micro-hemorrhage. No additional abnormalities are visualized."

In a follow-up report dated August 18, 2011, the neurologist reported that the recent MRI of the cervical spine revealed minor degenerative changes but no definite evidence of root compression or spinal stenosis. "That of the brain revealed an artifact at the lateral aspect of the pons possible micro-hemorrhage related to the previous trauma."

On September 30, 2011, the worker's treating physician advised the WCB that there was medical support from the treating neurologist to support that the worker's diagnosis of diffuse myofascial pain syndrome was related to the injury at work on December 1, 2010. He noted that the worker did not have any such symptoms prior to her injury.

On October 27, 2011, a WCB medical advisor responded to questions posed by a WCB adjudicator with respect to the diagnosis of diffuse myofascial strain syndrome and its relation to the worker's compensable injury. The medical advisor stated:

  1. The worker appears to have had a soft tissue injury to her left side. The neurologist reports tenderness of the left trapezius scalene cervical thoracic and lumbar paravertebral muscles. These areas were found not to be tender when examined by the physiotherapist at the call in exam. The findings on the left arm of the worker go unexplained. There are also nuances of differences of the work injury reports on three different occasions. At this time there is no convincing evidence of regional myofascial pain syndrome.

  1. Based on the MOI [mechanism of injury] and the atypical presentation of the worker there is a considerable margin of doubt as to the current complaint of the worker.

  1. Based on the slightly different descriptions of injury as noted above and the lack of clarity of diagnosis it is not clear that the worker's complaints and findings relate to the injury.

By letter dated November 3, 2011, the worker was advised that the new medical information had been reviewed by a WCB medical advisor and that it was the WCB's opinion that her current symptoms were not causally related to the compensable injury of December 1, 2010. The decision was appealed by the worker to Review Office on December 9, 2011.

On February 8, 2012, Review Office determined that wage loss benefits were not payable beyond April 26, 2011 and that the worker had recovered from the effects of the December 1, 2010 compensable injury by that point in time. Review Office noted that the treating neurologist was using the wrong accident description in his original consult to the worker's physician as he describes an accident history of a patient falling on the worker. The workers' description of accident to the WCB was that the patient started to fall backwards on the bed and that the worker leaned forward to stop the fall when she strained her mid back.

Review Office noted that the worker had a multitude of upper body symptoms which the worker and her physicians seemed to relate to the accident description. There were comments of the worker having numbness in the arm and left side of her face and chest pain. Review Office felt that the vast majority of the symptoms presented would not have a relationship to the description of injury the WCB received from the worker on December 9, 2010 that the area of injury was her mid and upper back. Review Office concluded that whatever was causing the worker's complaints of pain and tenderness through many areas of her upper body did not have a relationship to the thoracic strain injury of December 1, 2010. On March 1, 2012, the worker 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 Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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.

Worker’s position:

The worker appeared at the hearing accompanied by her husband. It was submitted that when the WCB decided that the worker had a muscular issue which should have healed within six to eight weeks, it ignored the most important information. The facts were that the pain and symptoms that the worker encountered started almost immediately after the injury and to this day, those symptoms had never subsided. The worker was still taking the same pain medication and was still suffering the same discomfort and injury that she previously had before. There had never been a recovery.

The worker's husband referred the panel to medical reports by the treating physiotherapist and family doctor which he submitted clearly indicated the worker had not recovered. He also referred to the worker's experience on her graduated return to work program where she was unable to return to work due to the pain. There was clear documentation that the worker had tried to go back to work, but that her symptoms got worse and she had to discontinue.

It was also submitted that the worker's story had never changed - it may have just appeared different due to the various reporting structures. Slight variations were present because other people were relating the worker's story, but this should not result in the worker being less credible. Her story had always been that it was the left side of her body which was suffering symptoms and that the accident happened when she was at work. The fact that the WCB accepted her claim immediately and paid her through to April 2011 showed that the worker's story was credible.

With respect to the diagnosis of myofascial pain syndrome, literature regarding the condition was referred to. It was submitted that myofascial pain syndrome was often a diagnosis of exclusion and in the worker's case, as other causes had been eliminated, this was the only diagnosis that was left. Based on this diagnosis, it was submitted that the WCB should be paying the worker's claim as it was related to her workplace injury. It was not the case that the worker did not want to work. It was that she was not capable of going back to her job because the pain was so severe.

Analysis:

In order for the worker’s appeal to be successful, the panel must find that the difficulties the worker experienced after April 26, 2011 are related to the injuries she sustained in the workplace accident of December 1, 2010. We are not able to make that finding. On a balance of probabilities, the panel is not convinced that the worker is suffering from a myofascial pain syndrome which was caused by the workplace accident.

In coming to our decision, the panel relied on the following:

  • The diagnosis of myofascial pain syndrome is a complex diagnosis for which there is no uniformly accepted definition and no clear clinical criteria. The diagnosis is, nevertheless, a condition which is accepted by the Manitoba WCB in some cases as compensable.
  • In the present case, the only physician to suggest this diagnosis was the treating neurologist. As noted in the file, however, he is not a physical medicine specialist whose practice involves treatment of myofascial pain.
  • The panel notes that the history of injury considered by the neurologist is not accurate. He described an incident where the patient fell on the worker and the worker twisted her neck and lower back. The worker's evidence at the hearing confirmed that the patient did not fall on her and there was no twisting of her neck.
  • We also note that the examination findings of the neurologist included diffuse tenderness which spread across a large area including the cervical paraspinals, trapezius, scalene and thoracic and lumbar paraspinal muscles. He did not, however, describe any specific trigger points.
  • In view of the foregoing factors, the panel is inclined to place less weight on the opinion of the neurologist.
  • In April 2012, the worker was seen by a physical medicine specialist. The physical medicine specialist did not support a diagnosis of myofascial pain syndrome related to the December 2010 workplace accident. Instead, he opined that the worker had a syndrome like somatoform pain disorder.
  • At the call-in examination on March 23, 2011, the physiotherapist specifically tested for tenderness but noted "no significant tenderness on palpation of the scapular or paravertebral musculature." He concluded that the probable diagnosis was thoracic soft tissue strain.
  • After review of the medical evidence by a WCB medical advisor on October 27, 2011, he opined that there was no convincing evidence of regional myofascial pain syndrome and that there was considerable margin of doubt as to the worker's current complaints.
  • The ongoing symptomatology described by the worker is limited to complaints of pain which, over the course of the claim, have not been confined to the areas of injury identified at the outset of the claim.

When making decisions, the panel must be satisfied on a balance of probabilities. In view of the foregoing, we do not feel that the evidence supports the position that the worker is suffering from a myofascial pain syndrome which was caused by the workplace accident. Instead, the panel is of the view that the worker's compensable injury was limited to a thoracic soft tissue strain and that by April 26, 2011, this injury had resolved. Accordingly, the panel's decision is that the worker is not entitled to wage loss benefits beyond April 26, 2011.

The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
R. Koslowsky, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 4th day of December, 2012

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