Decision #03/13 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that she had recovered from the effects of her workplace injury and that her ongoing difficulties were not related to the accident. A hearing was held on December 4, 2012 to consider the matter.Issue
Whether or not the worker is entitled to benefits beyond May 13, 2011.Decision
That the worker is not entitled to benefits beyond May 13, 2011.Decision: Unanimous
Background
The worker filed a claim with the WCB for a back injury that occurred at work on September 2, 2010.
When speaking with a WCB adjudicator on November 5, 2010, the worker reported that she was lifting a heavy computer on September 2, 2010 when she hurt her back. She said she continued to work following the incident and later on (she could not recall the date), she hurt her back further from lifting heavy garbage bags full of phone books.
Medical information showed that the worker attended a physician for treatment on October 1, 2010, and was diagnosed with a lumbar strain. An x-ray performed on the same day revealed minimal degenerative changes. The claim for compensation was accepted by the WCB and physiotherapy treatments were authorized. By November 1, 2010, the worker had returned to her full regular duties but was cautioned to avoid heavy work by her treating physician on November 8, 2010.
In a progress report for an examination dated December 29, 2010, the treating physician reported that the worker had right lumbar pain that increased with flexion and lifting. She had pain in the proximal lateral right calf and pain in both shins with lifting. The worker also had bilateral elbow pain, more so on the right. The worker was assessed with lumbar strain, lateral epicondylitis and (questionable) shin splints.
On December 31, 2010, the worker advised the WCB that she stopped working for the cleaning company as of December 10, 2010 as her job duties of lifting and mopping were hard on her back. The worker denied any new accidents or aggravations and was of the view that she had never fully recovered from her injury and that she had returned to work too soon. Based on this information and reports from the employer and treating physician, the worker's wage loss benefits were reinstated.
On February 4, 2011, the worker advised the WCB that she was bothered by back pain while working her sewing job. Her symptoms went from her low back down to her right leg and toes. The worker noted that the pushing on the sewing pedal has continued to aggravate her back. The worker also advised that her elbow problems were related to her job duties of heavy lifting and carrying.
In a report dated February 25, 2011, an orthopaedic consultant diagnosed the worker with a low back strain and mechanical low back pain. He noted that a CT scan done in December 2010 reported only disc bulging at the L3-4-5 level.
On April 6, 2011, the worker was seen at the WCB's offices for a call-in examination. The WCB medical advisor concluded that the worker's current reported symptoms were not related to the September 2, 2010 workplace injury and that she was unable to support further workplace restrictions.
In a decision dated May 4, 2011, the WCB advised the worker that no further responsibility would be accepted for her back difficulties and that wage loss benefits would be paid to May 13, 2011 inclusive and final. In making her decision, the case manager referred to the examination findings of April 6, 2011. Based on the history of injury, the compensable diagnosis of lumbar strain, the normal recovery period of 4 to 8 weeks for a strain and no clinical findings supporting workplace restrictions, the case manager felt that the worker's ongoing difficulties would not be related to her workplace injury.
Subsequent to the adjudicative decision dated May 4, 2011, further medical information was submitted with respect to an MRI dated June 15, 2011 as well as reports from the worker's treating physician. On July 29, 2011, the WCB medical consultant who had examined the worker on April 6, 2011, reviewed the information and upheld her previous opinion that the worker's reported symptoms were probably not related to the September 2, 2010 workplace injury. On August 8, 2011, the worker was advised that the decision made on May 4, 2011 remained the same.
On August 26, 2011, the worker appealed the WCB's decision that her ongoing back difficulties were unrelated to her workplace injury. The worker submitted that she still had pain in her low back and sometimes the pain and numbness went down her right leg. She had difficulty bending, lifting and walking. She noted that the reports from her treating physician confirm that she has had the same problem since her accident.
Prior to considering the worker's appeal, Review Office referred the worker's file to the WCB's healthcare branch to obtain further information in relation to the causes of an annular tear (noted in the worker's MRI of June 2011) and for an opinion as to whether the annular tear was related to the worker's accident description. The medical opinion is on file dated October 19, 2011.
On October 24, 2011, Review Office determined that the worker was not entitled to benefits beyond May 13, 2011. Review Office outlined the opinion that the compensable injury was a lumbar strain and based on the duration of time since this injury and the treatment provided, the worker had recovered from the effects of her injury.
Review Office also noted: "The worker's file was reviewed by [two WCB medical consultants] to provide an opinion with regards to the annular tear noted at L4-L5 of the worker's spine (MRI). They opined that the combination of the mechanism of injury, the reported symptoms and the clinical findings are more likely representative of a soft tissue strain and non-radicular lower back pain. They stated that on the balance of probabilities, the reported mechanism of injury did not involve enough force to cause a traumatic and acute annular tear. The Review Office accepts this opinion and finds that the annular tear noted in the worker's imaging studies is considered a pre-existing condition, unrelated to the compensable injury."
On December 30, 2011, the Worker Advisor Office submitted medical reports to Review Office to support the position that the worker's ongoing low back difficulties were causally related to her workplace accident.
In a second decision dated February 9, 2012, Review Office noted that it previously accepted that the worker sustained a back strain as a result of her workplace accident in September 2010. Review Office noted the new diagnoses on file from a neurologist and a pain management specialist - mechanical low back pain/chronic mechanical low back pain syndrome were based on their examinations which occurred over one year after the workplace accident. Review Office was of the opinion that these diagnoses were not specific in nature and did not identify an injury site and therefore it could not establish that the worker's reported ongoing difficulties were causally related to the compensable injury.
Review Office indicated that the diagnosis of chronic myofascial pain syndrome was noted by a specialist in November 2011. The specialist reported that the worker's back pain was arising from her right lower lumbar region and that the worker had significant tenderness arising from the right lower lumbar region at the level of the paraspinal musculature. Review Office noted, however, that when examined at the WCB in April 2011, the worker reported tenderness specifically in the area of T12-L3. When considering this information, Review Office indicated that the worker's recently reported difficulties were not consistent with the area previously identified. Therefore Review Office could not establish a relationship between the findings made by the specialist and her compensable injury. Review Office also confirmed its early finding that the L4-5 small central annular tear and the small central disc bulge recorded in the June 2011 MRI was not caused by the workplace accident.
On September 17, 2012, Review Office's decision was appealed by the Worker Advisor Office 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.
The worker has an accepted claim and is seeking benefits beyond May 13, 2011. 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. Section 27 of the Act provides for the payment of medical aid benefits.
Worker's Position
The worker was represented by a worker advisor. With the assistance of an interpreter, the worker answered questions asked by the panel.
Prior to the hearing, the worker advisor provided a detailed brief on the worker's appeal. At the hearing the worker advisor summarized the worker's position. He submitted that the worker is entitled to further benefits as the evidence supports that the worker's low back difficulties, which persisted after May 13, 2011, continued to be the result of her workplace injury.
The worker advisor noted the delay in filing a claim and acknowledged that the claim was ultimately accepted. He said the worker stopped work for a short time but returned to work too soon. Her condition was aggravated by the duties she performed in both of her jobs. She had to stop work for the cleaning company on December 10, 2010. She continued to work at the sewing factory which involved lighter duties but eventually stopped this work as well.
The worker said her cleaning job was very heavy work. She described how she injured her back moving a computer monitor. While lifting the computer monitor from a box she felt severe pain from her mid back to the belt line. The pain was on the right side. She said that she had not felt this pain before. She continued working that day and used non-prescription medications to treat the pain. She did not think it was a serious injury and had expected to recover with time. When it did not improve, she saw her family physician.
The worker said she had various problems as a result of the injury, including back pain, a shocking feeling in her small toe, shin pain, whole body stiffness, shaking hands, shocking pain in her back, and a loss of energy.
The worker advisor submitted that the worker sustained a muscular strain which was complicated by delayed treatment, an early return to work, and elements of anxiety and depression.
Employer's Position
The accident employer, a cleaning company, was represented at the hearing by two persons. The representatives attended to answer questions and did not take a position on the appeal. The representatives advised that the duties included light dusting, spot vacuuming, cleaning washrooms and washing floors. The representatives estimated that 95% of the floors were carpeted. He said that the job was not heavy and that assistance was available on request.
Analysis
The panel has been asked to determine whether the worker is entitled to benefits after May 13, 2011. For the worker's appeal to be acceptable, the panel must find that the worker's injury resulted in a loss of earning capacity and required medical attention after this date. The panel was not able to make this finding.
The panel notes that the worker initially complained of low back pain. As the claim progressed the worker described a much broader range of symptoms, including pain in the right leg and right great toe and right fifth toe, pain in elbows and hand and intermittent numbness of the right foot. In May 2012, an occupational health physician noted complaints of a shock or surging sensation that extends from the low back into her right posterior leg around the knee and to the toes of the right foot, weakness in the right leg, which, along with the low back discomfort, limits her tolerance for standing, shakiness of her right hand and arm associated with weakness of hand and disrupted sleep. The panel is not able to relate this broad group of symptoms to the workplace injury. The panel finds that the worker's symptoms and loss of earning capacity beyond May 13, 2011, are not related to the workplace injury.
In reaching this decision, the panel attaches significant weight to the opinion of the WCB medical advisor who examined the worker on April 6, 2011. The panel notes that this examination took place nearer to the date that benefits were terminated and closer to the accident date than the physicians' opinions relied upon by the worker.
The WCB medical advisor found normal active lumbosacral range of motion, normal sensation to light touch at the lower extremities, negative supine and sitting straight leg raises bilaterally, negative upper motor neuron signs, normal patellar and Achilles deep tendon reflexes and that the generalized cogwheel give way to weakness on the right side was not specific to an anatomic myotomal abnormality and was not supportive of a specific medical diagnosis. The medical advisor concluded that the current reported symptoms are not likely related to the September 2, 2010 workplace injury.
On July 29, 2011, the WCB medical advisor reviewed the file upon receipt of the June 15, 2011 MRI. The medical advisor again concluded that the symptoms are probably not related to the September 2, 2010 workplace injury. The medical advisor noted that the initial symptom was low back pain, that the mechanism of injury was consistent with a soft tissue strain, and that 11 months have passed since the workplace injury.
The panel also notes and relies upon the opinion of the orthopaedic specialist who saw the worker on February 25, 2011. The specialist diagnosed low back strain and mechanical low back pain. The specialist considered the worker to be fit for light duties employment at that time.
The worker advisor referred to the opinions of an occupational health physician in support of the worker's position that her ongoing condition is related to her workplace injury. The panel notes that the occupational health physician found on May 2, 2012 "…persistent active trigger points in her right lower leg and lateral thigh for which myofascial trigger point treatment would be appropriate." The panel notes this opinion contrasts with the opinion of the physical medicine and rehabilitation pain specialist who saw the worker in March 2012 and found on examination "There is no evidence of acute myofascial pain..." The panel declines to rely upon the occupational health physician's opinion. The panel accepts the physical medicine and rehabilitation pain specialist's opinion as being more relevant and probable. This specialist found no myofascial findings at an earlier point in the claim. Any current medical complaints as identified by the occupational health physician are not causally related to the compensable injury.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 9th day of January, 2013