The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") which determined that she was not entitled to benefits beyond June 11, 2010. The worker contends that she still suffers from the effects of her compensable injury sustained on December 28, 2009 and is entitled to further compensation benefits. A hearing was held on February 28, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to benefits after June 11, 2010.

Decision

That the worker is not entitled to benefits after June 11, 2010.

Decision: Unanimous

Background

In early January 2010, the worker filed a claim with the WCB for mid back pain that started on December 28, 2009 which she related to her job duties that involved pushing boxes weighing 60 pounds.

On January 6, 2010, the worker described her job duties to a WCB adjudicator. The worker noted that trimming product caused pain in her shoulders and neck. She had previously hurt her right shoulder approximately six years ago doing this job but otherwise she had no pre-existing conditions or problems. Her neck, shoulders and back were painful. The worker indicated that she had difficulties with her neck and shoulder all the time but the pain worsened around December 28, 2009. The adjudicator noted that the worker had a language barrier and appeared to have difficulty with recalling details and dates regarding when she first had pain and when she first had treatment.

On January 12, 2010, the attending physician reported that the worker was seen on January 5, 2010 with complaints of pain in her upper back, neck and in both shoulders. Her problems started a few weeks ago and then slowly progressed over time and deteriorated on January 4, 2010. The physician noted that the worker's job over the last eight years involved recurrent heavy lifting and repetitive movements of her arms and hands over seven hours per day. The diagnosis was chronic upper back, neck and strain of both shoulders. Physiotherapy was suggested as a form of treatment.

In a report dated January 20, 2010, the treating physiotherapist noted that on January 15, 2010, the worker complained of constant burning pain in her mid back and bilateral shoulder pain with elevation, decreased strength and function, neck stiffness and sleep disturbance. She noted that the worker's onset of pain came about after prolonged bending over and pushing 50 pound boxes. The diagnosis was cervical-thoracic strain and rotator cuff tendinopathy. The physiotherapist submitted an appointment list showing that the worker had been seen for treatment starting October 13, 2009 through to December 29, 2009.

In a previous report dated October 13, 2009, the treating physiotherapist reported: "Onset of upper back pain approximately 2 weeks ago. Started from repetitive heavy lifting at work." The worker's condition was diagnosed as thoracic paraspinal strain, rotator cuff tendinitis.

On February 17, 2010, the treating physician reported that the worker was capable of returning to alternate or modified duties as of March 8, 2010.

The worker's claim for compensation was accepted based on the diagnosis of an upper back and bilateral shoulder strain. The worker returned to a graduated return to work program with restrictions as of March 8, 2010 starting at 2 hours per day.

On April 7, 2010, a WCB physiotherapy consultant stated:

The initial diagnosis appears to be a mid back sprain from pushing boxes. This may be acute on chronic as problems to this area dating back to October 09 (December 09) CI are noted in the therapist October 13, 09 report. The recent reports relate more to the chronic condition. The therapist notes the poor posture, level of conditioning and compliance with home program. At 3 months post strain injury, ongoing problems are more likely related to the above then the ci. Worker should self-manage with home based program at the completion of physiotherapy.

By letter dated April 22, 2010, the worker was advised of the WCB's position that her current difficulties were no longer related to her work place injury of December 28, 2009. The worker was advised that the information obtained from her treating physician and physiotherapist was that she had neck, upper back and shoulder pain prior to her workplace accident. Based on a WCB medical opinion outlined on April 7, 2010, it was felt that the acute injury from December 2009 had significantly improved and that it was more likely than not that her ongoing symptoms were referable to her pre-accident symptoms.

On May 4, 2010, the worker requested reconsideration of the decision made on April 22, 2010. The worker reported that she started employment in 2002 with her employer. Her job required her to stand for 8 hours per day during her shift and she repetitively used her hands and arms to perform her job duties. In October 2009, she started physiotherapy treatments on her own to eliminate the mild pain she was experiencing. The treatments eliminated the pain and she felt fully capable of working. The worker said she could not understand why the WCB determined that her ongoing pain was due to her pre-accident symptoms when she was able to effectively eliminate her mild discomfort by going to physiotherapy. She noted that her injury in December occurred while working on the de-boner and packing/pushing 50 pound boxes.

On August 4, 2010, the employer's representative submitted that the worker's complaints of pain were not associated with her long term, customary and comfortable work duties particularly in view of the lack of a specific, discrete work-related incident. It was felt that the worker's loss of earning capacity beyond April 23, 2010 was more likely a result of personal or pre-existing factors unrelated to the workplace.

On August 18, 2010, Review Office referred the worker's claim back to the case manager to conduct an investigation into the worker's October 2009 work-related right shoulder injury.

In a report to the family physician dated June 14, 2010, an orthoapedic surgeon reported that the worker was seen on June 11, 2010. There was a history of chronic and recurrent pain in the right shoulder, upper and low back. The surgeon noted that the worker had pain on the right side of her upper back while trimming at work in October 2009. The worker took physiotherapy during October and November 2009 and was improved and able to stay at work. The orthopaedic surgeon provided a diagnosis of degenerative changes in the spine and chronic soft tissue strain in the right posterior shoulder region and upper back.

In a report dated June 16, 2010, the family physician noted that the worker's problems came back when she started working 6 hours per day during a graduated return to work program. Her major complaints were right shoulder pain with movement, middle thoracic spine pain and severe tenderness under the right scapula. The diagnosis was right shoulder strain and chronic right upper back myofascial pain. The family physician noted that a CT scan of the thoracic spine showed no abnormality and that she referred the worker to an orthopaedic surgeon on June 11, 2010 as her condition was not improving.

In follow up report dated June 23, 2010, the treating physiotherapist reported: "Neck and shoulder improving. Constant aching pain in the thoracic spine and rhomboids R more than left, still remains. Aggravated after several hours of forward flexion at work or repetitive lifting. Progresses to a burning pain and fatigues quickly."

On October 14, 2010, the adjudicator advised the worker that she was unable to find evidence to support that the worker's medical condition in October 2009 was related to her workplace injury in December 2009 based on the following findings:

• the employer was notified of an injury on January 4, 2010 according to the employer's injury report;
• the worker's accident report indicated January 4 as the date she reported the onset of symptoms that occurred on December 28, 2009 to her employer;
• the information provided by the worker on January 7, 2010 to the WCB adjudicator, i.e. a history of right upper extremity symptoms for the prior six years and that her neck, shoulder and back were painful. There was no mention of the worker going for treatment in October 2009;
• the information from the treating physician regarding the first visit on January 4, 2010 indicating that the worker's symptoms had started a few weeks prior;
• the worker's supervisor could not recall a date when the worker made complaints between October 2009 and January 2010.

On November 12, 2010, the worker appealed the above decision to Review Office. The worker contended that her supervisor was aware of her upper back pain prior to January 2010 and that she took time off work to attend physiotherapy treatments. The worker indicated that she was sure that she told the WCB adjudicator on January 7, 2010 that she had symptoms in October 2009 and that she had gone for physiotherapy covered by her insurance as she did not want to go on compensation.

On January 31, 2011, the employer's representative submitted to Review Office that the worker failed to demonstrate that her pain symptoms in October 2009 arose out of and in the course of her employment or that a relationship existed between her symptoms in October 2009 and the incident of December 28, 2009; and that she failed to provide evidence of disability sufficient to support her ongoing absence from work since April 23, 2010 with regard to her compensable strain injury.

On February 11, 2011, the worker submitted to Review Office that she was not seeking any financial reimbursement for the symptoms she felt in October of 2009. Her appeal stemmed from the fact that her compensable claim which was accepted on December 28, 2009 was stopped on April 23, 2010.

In a decision dated May 24, 2011, Review Office determined that the worker was entitled to benefits to June 11, 2010, the date she saw her treating orthopaedic surgeon. Review Office accepted that the worker suffered an injury by accident at work on December 28, 2009 and that the injury was a strain to her upper back and both shoulders. Review Office accepted that the worker had occasional and varying degrees of aches and pains related to her employment activities.

Review Office noted that on June 11, 2010, the examination by the treating orthopaedic surgeon was limited to pain and that it was not considered sufficient to preclude the worker from working. Review Office considered that some of the worker's pain was related to non- compensable pre-existing degenerative changes of her thoracic spine. Review Office placed weight on the comment made by the worker on February 11, 2011 that her condition had worsened. It was considered that this change in her condition could not be employment or accident-related given the worker had not worked since April 2010.

On August 30, 2011, the worker provided the WCB with additional medical information to support that she was entitled to benefits beyond June 11, 2010. These included reports from her family physician, a cardiologist, a pain management specialist and an orthopaedic specialist. The additional medical reports were forwarded to the employer's representative for comment and her response is on file dated October 13, 2011.

On October 28, 2011, Review Office confirmed that the worker was not entitled to benefits after June 11, 2010. Review Office referred to the additional medical information submitted by the worker. Review Office concluded that there was no relationship between the worker's fibromyalgia and her accident and there was no relationship between any of her other medical conditions and her accident. On November 5, 2012, the worker appealed Review Office's decision and an oral 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 of Manitoba (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.

Worker’s submission:

The worker was self-represented at the hearing and was accompanied by her husband. The services of an interpreter were provided. The worker described an incident which occurred on December 28, 2009 while she was working. She had to push a 50 pound box when she felt something happen to her shoulder and upper back. She managed to finish her shift that day, and then she had a few days off. She stayed at home but the pain continued so she called the employer to advise that she would not be able to come in to work because of the pain. The worker remained off work until March 2010 when she attempted to return to work on a graduated basis. She tried to perform her duties but found it very hard and was not able to progress to working for more than 3 hours per shift. On April 23, 2010, the employer had a plant shut down and the worker stopped working. She had not returned to work since.

The worker felt that she was entitled to further benefits because she was still in pain and was unable to work in the way that she used to prior to her injury. She continued to have pain in her upper shoulders, neck and back. The pain was now chronic and she felt it was caused by the pushing she did at work.

Employer’s submission:

The employer was represented by an advocate and a vice-president of human resources. The employer's position was that the worker was not entitled to benefits after June 11, 2010. It was noted that the worker had been diagnosed with a strain injury. Benefits were paid for six months, which was an adequate recovery time for a strain injury. It was submitted that the weight of the medical evidence pointed to non-compensable issues as the cause for the worker's ongoing problems, which included high blood pressure, osteoporosis, stomach problems, fibromyalgia and depression. Fibromyalgia is a very common syndrome which affects the joints, muscles, tendons and other soft tissues. It is very common in middle aged women. The cause is unknown and there is no known prevention. It was noted that the worker had been off for almost two years yet her condition worsened, which suggested that the condition was not work-related. The most recent medical report indicated that repeated tests, including MRI, did not show any annular tears, disc herniations or any spinal mass or tumors. It was therefore submitted that no further benefits should be paid.

Analysis:

The issue before the panel is whether or not the worker is entitled to benefits after June 11, 2010. For the worker’s appeal to be successful, we must find on a balance of probabilities that after that date, the worker's ongoing difficulties were caused by her work duties. For the reasons outlined below, we are not able to make that finding.

The medical evidence on file would suggest that the worker's current symptoms are caused by fibromyalgia pain syndrome. The following medical reports identify fibromyalgia as a diagnosis applicable to the worker which is causing her neck and back pain:

• May 10, 2011 report of a pain clinic anesthesiologist;
• May 17, 2011 and October 3, 2011 reports of an orthopaedic surgeon;
• May 13, 2012 report of a clinical psychologist;
• July 30, 2012, October 4, 2012 and November 6, 2012 reports of a physical medicine specialist; and
• October 4, 2012 report of the worker's family physician.

At the hearing, the worker's evidence was that she was told by her doctors that the sharp stabbing pain she experiences is caused by fibromyalgia and that she will have to live with it.

Based on the above, the panel finds that the worker's current diagnosis is fibromyalgia and that fibromyalgia is the reason for her ongoing difficulties and symptoms of pain in her neck, back and shoulder. The question the panel must then ask itself is whether the work duties performed by the worker in December 2009 caused her to develop fibromyalgia.

Unfortunately, on a balance of probabilities, the panel is unable to relate the fibromyalgia diagnosis to the work duties that were being performed by the worker. In our opinion, the pushing of a heavy weight at work caused the worker to suffer a strain, but that was the extent of her work-related injury. Normally a strain should resolve within a period of six months, and the evidence on file would suggest that initially, the worker's condition was getting better. The panel notes the February 2010 reports from both the family physician and the physiotherapist reported some improvement, albeit slow.

Importantly, the panel notes that although the worker stopped working in mid-April, 2010, her condition slowly worsened. The diagnosis of fibromyalgia was first identified in May 2011. The medical reports do not support or suggest a causal link between the worker's fibromyalgia and her work injury. Although she did return to the workplace in March and April, 2010, her hours worked were limited and the panel finds that the description of her duties appeared to be within her restrictions. We make this finding despite the worker's position at the hearing that the duties she performed when she returned to work were not modified. The descriptions of trimming and working on the tunnel and drain did not involve any lifting, carrying, pushing or pulling over 10 pounds, bending or twisting, climbing or reaching above the shoulders, which were the restrictions set out by the family physician in the Employee Fitness Form dated February 17, 2010. Avoidance of repetitive forward flexion position with ability to change position and take stretch breaks was later added on April 12, 2010. The panel finds that the return to work respected these restrictions.

Also concerning for the panel was the fact that the worker had evidence of degenerative changes in her back and a history of symptoms which were present and treated by a physiotherapist in October 2009, a few months prior to the workplace accident. This would suggest that natural degenerative processes also played a role in the worker's presentation. It is also notable that throughout the course of her claim, the worker was dealing with other unrelated medical conditions involving her legs, gastrointestinal system, osteoporosis, hypertension, chest pain, menopause, insomnia, headaches and psychosocial issues. All of these conditions were not related to the work duties and would have contributed to her loss of earning capacity.

Overall, the panel is unable to find on a balance of probabilities that the development of fibromyalgia was causally related to the worker's job duties. As a result, the panel finds that the worker is not entitled to benefits after June 11, 2010. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
C. Anderson, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 24th day of April, 2013