Decision #08/13 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that she was not entitled to benefits for the period June 18, 2010 to September 6, 2010 in relation to her compensable injury. The worker's position was that her time loss from work was related to her compensable upper back, shoulder and neck injuries as opposed to her non-compensable low back condition. A hearing was held on November 21, 2012 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits beyond June 18, 2010 to September 6, 2010.Decision
That the worker is entitled to wage loss benefits beyond June 18, 2010 to September 6, 2010.Decision: Unanimous
Background
On March 27, 2007, the worker injured her upper back, neck, head and left shoulder when she lifted a heavy box at work. When seen for medical treatment on March 29, 2007, the diagnosis rendered was a paracervical, trapezius muscle strain. The physician also noted that the worker had a similar prolonged episode in 2003. The claim for compensation was accepted and benefits and services were paid to the worker while she underwent physiotherapy treatment. The worker was off work for approximately one month and then returned to full time modified duties.
On June 19, 2007, the worker was seen by a WCB medical advisor at a call-in examination. The medical advisor reported that the most likely diagnosis was a soft tissue injury with no evidence of myofascial pain. She noted that the worker's elbow pain was not related to the claim. Treatment recommendations included a reconditioning-type program. It was felt that the worker could continue with modified duties and specific work restrictions were outlined.
In April 2008, the worker reported to the WCB that she was having ongoing problems with her back, neck and shoulders, with chronic inflammation in her upper back. She reported that her lower back was okay.
On July 14, 2008, the worker was called in for another examination by the WCB medical advisor. It was reported that the worker presented with left neck and mid back pain. She was on modified duties when she had a flare in her symptoms relating to further lifting at work. Her examination was most consistent with a myofascial source for her pain which could be related to the workplace incident. Restrictions of no overhead work, no lifting more than 20 pounds and no work with left arm held away from the body were outlined.
The worker was assessed at a physical medicine clinic in August 2008 and the diagnoses rendered were 1) myofascial neck and shoulder pain of moderate severity and 2) workplace disability, temporary, permanent.
On August 21, 2008, a WCB medical advisor reviewed the physical medicine clinic's report and stated that there could be some functional improvement with treatment, but full recovery was unlikely. The medical advisor indicated that the worker's restrictions should be reviewed in 6 to 12 month's time.
A sports medicine specialist responded to the WCB's request for information related to the worker's prior treatment for shoulder and neck complaints. On July 30, 2008, the specialist noted that he saw the worker in July 2003 for neck pain that was related to a cervical disc herniation. The worker presented with left C7 radiculopathy. He said the worker had recovered from her symptoms and was discharged from treatment on September 24, 2003.
On December 30, 2008, a WCB medical advisor noted to the file that the diagnosis was myofascial pain left shoulder/upper back and that the condition was characterized by chronic pain with episodes of exacerbation. It was recommended that the worker's restrictions should now be considered permanent.
In June 2009, the worker was awarded a 3.5% permanent partial impairment rating for loss of range of motion in her cervical spine.
On May 13, 2010, the worker advised her WCB case manager that she experienced an increase in symptoms in her upper back to low back which started about three months ago. The worker related her difficulties to an increase in her workload because of a staff shortage with the transition to a new plant.
A progress report from the family physician dated May 13, 2010 outlined examination findings of decreased range of motion in the cervical spine, paraspinal and shoulder girdle tenderness. The worker was advised to stop work as of May 12, 2010 and to return to light activity work on May 31, 2010.
On May 31, 2010, the family physician reported that there was little change in the worker's condition and that she would benefit from massage therapy. He noted that the worker could return to work at three hours per day commencing June 7, 2010 and to eventually increase her time to four hour days.
On June 18, 2010, the family physician questioned the diagnosis of fibromyalgia. He noted that the worker was unable to continue work after a few hours due to pain. He reported that the worker had fatigue and tender muscles with decreased range of motion in her spine.
On June 30, 2010, the family physician reported that the worker had a 10% reduction in back and neck pain and her sleep was much improved. He noted that the worker was capable of sedentary duties only.
A WCB medical advisor reviewed the file on July 8, 2010 and stated:
- the initial diagnosis of March 27, 2007 was probable non-specific cervical spine and upper back pain. Eighty percent of patients with these diagnoses will have material resolution by 12 weeks.
- the diagnosis of fibromyalgia was suggested given the insidious development of widespread pain; however the diagnosis appeared speculative at present.
- the diagnosis of fibromyalgia was not related to the 2007 compensable injury.
- there were no changes to the worker's permanent restrictions.
A progress report from the family physician dated July 14, 2010, noted that myofascial pain syndrome was impeding the worker's progress.
On July 21, 2010, the worker advised the WCB that she worked three four-hour shifts and was in a lot of pain. She said her job duties were very simple and not strenuous but after one hour of work her hand was going numb and her neck, shoulder and left arm were sore. The pain went all the way into her back. The worker indicated that her symptoms also now included migraine headaches.
On July 30, 2010, the worker advised the WCB that she was told by her doctor to only work four hours. The worker indicated that her doctor diagnosed her with fibromyalgia because her symptoms improved after he placed her on a drug commonly prescribed for fibromyalgia patients.
In a decision dated July 30, 2010, the WCB case manager advised the worker that her file had been reviewed by a WCB medical advisor and it was determined that her current diagnosis of fibromyalgia was not related to her 2007 compensable injury and therefore the WCB was unable to support her recent time loss from work.
On September 20, 2010, the worker advised the WCB that the job duties she was currently performing were not within her permanent restrictions. On September 23, 2010, the worker clarified that she usually did not have to lift her arm away from her body but occasionally she had to lift a tub of mail up with both hands maybe once a day. She noted that her current duties were computer work, pushing bins on a conveyor belt, and manual sorting. Most duties were completed with her right hand. The worker was reminded to stay within her regular duties and to ask someone for help with anything that would require her to exceed her restrictions. The worker indicated that her doctor reported the diagnosis of fibromyalgia because she had a pinched nerve in her buttocks. The case manager advised the worker that her claim was for her upper back, neck and left arm only.
On October 12, 2010, the worker submitted to Review Office that the injury to her upper back still persisted and that the new diagnosis of possible fibromyalgia should not have any effect on her original claim.
File records show that Review Office referred the worker's case back to primary adjudication with respect to the worker's time loss from work commencing in May 2010.
On October 18, 2010, primary adjudication determined that the worker was not entitled to time loss beginning June 21, 2010 as her symptoms and time loss were not related to her compensable injury. It was felt that the worker would have been capable of full time work within her permanent restrictions.
On October 20, 2010, the worker advised the WCB that she did not return to work on June 21, 2010 and that she remained off work until July 18. She worked July 18 to August 6, 2010 and was on vacation from August 9, 2010 to September 2, 2010. When she returned to work on September 3, 2010, she only worked for four hours per day for 1 to 2 weeks to get used to her duties again. After the 1 to 2 weeks, she resumed full hours and remained at work. The worker indicated that her inability to work after June 21, 2010 was due to her ongoing pain associated with her compensable upper back and shoulder problems.
On November 17, 2010, an occupational health physician reported that he saw the worker on October 21, 2010 regarding left upper extremity shoulder and neck pain which led to the worker going off work on May 12, 2010. The physician stated: "My examination findings are consistent with the myofascial taut bands, tender and trigger points noted by [physical medicine specialist] and [WCB medical advisor] in 2008. Her symptoms have settled down somewhat with rest following the flare up in her June 2010 attempt to return to work. Sleep is more restorative with a sedative. Given the chronicity of her aggravations with activities on and off the job, I do recommend she be referred to a physiatrist for consideration of myofascial trigger point injection therapy."
A WCB medical advisor reviewed the November 17, 2010 medical report at the request of the case manager on December 4, 2010. The medical advisor outlined the view that the worker's cervical spine and upper back region pain would be related to the 2007 compensable injury. He stated that he was unable to account for the reported low back pain in relation to the compensable injury.
On December 6, 2010, the worker was advised that no change would be made to the previous WCB decision that she was not entitled to further wage loss benefits beyond June 18, 2010. The case manager noted that the WCB accepted responsibility for her medical treatment and time loss up to June 18, 2010 as it was felt that her symptoms were consistent with the original work injury from March 27, 2007. It was felt that the worker's new symptoms in her buttock area and low back were not related her work injury. The case manager indicated that three medical opinions on file dated June 10, July 8 and December 4, 2010 all noted that she was able to perform full time work within her permanent restrictions.
On January 24, 2012, Review Office received the worker's appeal submission pertaining to the adjudicative decisions made on October 28, 2010 and December 6, 2010.
On March 23, 2012, Review Office determined that the worker's wage loss benefits were not payable beyond June 18, 2010 regarding her physical complaints at that time. Review Office noted that the worker was diagnosed with fibromyalgia on June 18, 2010 by her treating physician and that in the physician's opinion, the worker was experiencing symptoms which were different from the norm regarding her subjective presentation to him. It noted that the worker's symptoms were now spreading to the low back and buttocks for which the WCB never accepted responsibility. Review Office felt that these symptoms related to functional impairment and was producing the worker's time loss. Review Office indicated that it agreed with the position taken by the WCB medical advisor and case manager that strictly focusing on the worker's compensable upper back, left shoulder and neck condition, if she worked within her compensable restrictions on modified duties, there was no need for time loss from work. On April 2, 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation:
The worker is employed by a federal government agency or department and her claim is therefore adjudicated under the Government Employees Compensation Act (“GECA”). Under the GECA, an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation. The GECA defines accident as including “a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause.”
Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under The Workers Compensation Act (the “Act”).
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.
The worker’s position:
The worker was assisted by a union representative and participated in the hearing via teleconference. In response to questions posed by her union representative, the worker described her working conditions in 2009 and 2010. The worker's evidence was that in 2009, she continued to have the same issues with her upper back, shoulders and neck. She also had migraine headaches. In late 2009, the employer was in the process of transition between two plants and they were understaffed at the time. That was when the worker started having problems. Although she had permanent restrictions, there no longer was anybody around to help her so she had to perform some heavier duties such as lifting bags and picking up parcels and pushing them off the belt. At that point, not only did her upper back problems increase but she also started getting lower back problems because of all the lifting. The worker stressed, however, that although she was getting lower back pain, it was not the major issue. The pain in her upper back was the more serious condition and the upper back was the reason why she was unable to continue to work after May 2010.
The worker stated that she wanted to get back to work and on June 6, 2010 started a gradual return to work for three hours per day. She was doing sorting and no heavy lifting at the time, but after two hours, she would still develop pain. It would start with a burning pain in her upper back, which would spread to her shoulder and then into her neck, which would cause the migraine headaches. In her second week back, her hours were increased to four hours per day, but she only lasted until Wednesday, the 16th of June. At that point she was so aggravated by the pain that she could not handle it anymore. She went to her family doctor who authorized her as being not capable of work for unknown duration.
On July 19, 2010, she started another graduated return to work on a four hour basis and continued until August 6, 2010. At that time, she had three weeks of prescheduled annual leave, which she took as she felt her body needed the time to get better. During her time off, the worker just stayed at home and rested. After her leave was completed, on September 6, 2010 she returned to work at four hour days and was now at the employer's new plant where her restrictions were fully accommodated. This return to work was successful.
It was submitted that the issue in this case concerned the worker's graduated return to work from an aggravation of a compensable condition. A graduated return to work is designed to safely return an injured worker to their pre-injury condition, or as in this worker's case, to her permanent limitations. A graduated return to work is a guideline and is not written in stone. It is to be monitored each week for its appropriateness and followed to ensure that it is serving its purpose and is not having a detrimental effect on the recovery process.
It was noted that the worker did not refuse to participate in a graduated return to work. She did attempt it as written and only discontinued when it became unbearable and she did so following her doctor's instructions. The worker was clear that it was her intensified symptoms in her upper back compensable area that was the source of her not being able to continue, and not the additional symptoms that arose in her lower back and general body pains. It was contended that the original permanent restrictions established in January 2009 were designed to be adhered to in an attempt to prevent flare-ups and not as a benchmark for a graduated return to work when the worker was trying to recover from a severe exacerbation of her chronic condition.
Overall, it was submitted that the worker attempted a graduated return to work in May and in June and was unsuccessful both times. It was not until she had time off in August and rested that she was able to participate in a successful graduated return to work.
The employer’s position:
The employer's workplace safety and health WCB specialist appeared at the hearing. The employer's position was to support the WCB's decision to deny ongoing entitlement to the worker for the period June 18 to September 6, 2010 based on the fact that during a conversation with her case manager on June 21, 2010, the worker identified experiencing full body pain rather than the usual localized pain in her upper back/neck and shoulders. At the time, the employer provided the worker with accommodation well within her temporary functional limitations of sedentary duties performing seated sorting of mail at partial hours per day. The worker would not have been given a production quota and would have had the ability to work at her own pace with micro breaks as necessary. When sorting letter mail, the right hand/arm is used to place the mail in a sortation case. The left hand/arm is held in a neutral position gently grasping the bundle of mail. The size of the bundle of mail is determined by the individual. The worker would have had an ergonomic chair which was adjustable as required. This accommodation was the most sedentary accommodation the employer had to offer employees which did not require additional training.
It was submitted that the worker did not experience an incident, accident or traumatic event to have caused further onset of pain on June 18, 2010. Her temporary sedentary accommodation did not have her exceeding both her sedentary limitations nor her permanent limitations of no overhead work, no lifting more than 10-15 pounds and no work with the left arm held away from the body. The WCB medical advisor supported no need for time loss beyond June 18, 2010 in three separate memos. The worker had already been granted full loss of earnings benefits from May 12 to June 3, 2010 and partial wage loss benefits from June 6 to June 18, 2010 with an intended return to full duties on June 21, 2010.
It was also submitted that the worker began to experience pain in different areas of her body - the low back and buttocks in June 2010. These areas were never accepted as being part of her March 27, 2007 compensable injury. The employer therefore asked the panel to uphold the WCB's decision to deny further wage loss benefits.
Analysis:
The issue before the panel is whether or not the worker is entitled to wage loss benefits beyond June 18, 2010 to September 6, 2010. In order for the appeal to be successful, the panel must find that during the relevant time period, the worker's compensable injury continued to cause her to suffer a loss of earning capacity. On a balance of probabilities, we are able to make that finding.
The worker's accepted compensable diagnosis is chronic regional pain of the upper back, neck and left shoulder. The evidence given by the worker at the hearing was that for several months prior to May 2010, she had been working outside of her permanent restrictions due to there being a skeleton staff at work while the employer was transitioning operations to a new plant. The employer's representative was able to confirm that around the time of the transition in April 2010, there would have been a staffing shortage. The worker stated that instead of five people picking up parcels from the belt and sorting them, there were only one or two people. She would occasionally have to lift heavy bags weighing up to 50 pounds and parcels weighing up to 30 pounds. The employer's understanding was that the parcels would be no more than 10 pounds, but the worker stated this was incorrect. The panel accepts that while most of the parcels would be 10 pounds or less, the worker was still required to lift heavier weights. Because of this increased workload, the panel finds that the worker suffered a significant aggravation of the compensable injury involving the cervical spine, neck and left shoulder.
When she returned to graduated work on June 6, 2010, the worker was given sedentary duties within her permanent restrictions. The worker's evidence was that she attempted to perform these duties, but found that despite the accommodation, she still exacerbated the areas of her compensable injury. The panel accepts the worker's evidence in this regard and we find that with the support of her family doctor for complete inability to work, she is entitled to full wage loss benefits for the relevant period. She was not yet sufficiently recovered to enable her to perform even the sedentary duties, and it was not until after September 6, 2010 that she was able to return to her regular duties within her permanent restrictions.
With respect to the WCB memo of June 21, 2010, the panel is inclined to place less weight on the comment that the worker felt: "she had whole body pain and she couldn't handle it anymore." It is clear from the later portion of the memo that the worker identified her neck/shoulders/upper back area as being the area where she always had throbbing and burning. This confirms that the areas of the compensable injury continued to play a significant role in the worker's inability to work. The panel does not accept that the worker's loss of earning capacity from June 18 to September 6, 2010 can solely be attributed to other pain emanating from the low back and/or the proposed diagnosis of fibromyalgia.
For the foregoing reasons, the panel finds that the worker is entitled to wage loss benefits beyond June 18, 2010 to September 6, 2010. The worker's time loss starting June 18, 2010 was due to the effects of the compensable injury and therefore she is entitled to full wage loss for the period less any hours actually worked or vacations taken in that period. The worker's appeal is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 17th day of January, 2013