Decision #81/13 - Type: Workers Compensation

Preamble

The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that she had recovered from the effects of her compensable injury and was not entitled to benefits beyond April 9, 2012. A hearing was held on May 13, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to full wage loss and medical aid benefits beyond April 9, 2012; and

Whether or not the worker has recovered from her compensable injury.

Decision

That the worker is not entitled to full wage loss and medical aid benefits beyond April 9, 2012; and

That the worker has recovered from her compensable injury.

Decision: Unanimous

Background

In February 2011, the worker suffered an injury to her low back when lifting up a bag of spice weighing 15 kg from the ground level. The worker reported constant low back pain, pain radiating into the left buttock and difficulty with weight bearing on her left leg. The claim for compensation was accepted based on the diagnosis of a lumbosacral strain.

On May 20, 2011 the worker underwent a lumbar spine MRI which revealed minor degenerative disc changes at L5-S1. There was no finding of focal disc protrusion or bony injury.

On July 24, 2011, a WCB medical advisor reviewed the claim and outlined the opinion that the worker was capable of workplace activities with certain work restrictions. By October 6, 2011, the employer had not been able to accommodate the worker with a modified duty position.

On October 21, 2011 the worker was seen at a call-in assessment at the WCB's offices. The medical advisor reported that the current diagnosis appeared to be non-specific back pain and there were non-organic findings.

In late November 2011, the worker commenced a reconditioning program which was to run from November 30, 2011 to January 3, 2012 inclusive. Effective January 4, 2012, it was anticipated that the worker would be capable of returning to work and performing her regular work duties.

On December 15, 2011 a physical medicine and rehabilitation ("physiatrist") specialist reported that the worker was seen in consultation for left radicular leg pain. Based on electrodiagnostic studies and his review of the May 2011 MRI results, the diagnoses were:

  1. No definite electrophysiologic evidence for a lumbosacral radiculopathy on the left; and
  2. Myofascial pain in the left gluteal region extending down the lateral aspect of the leg involving the tensor fascia lata and ileo-tibial band complex.

The worker was instructed by the physiatrist to continue with physiotherapy. He also indicated that the worker may benefit from a greater trochanteric bursa injection.

A progress report from the family physician dated January 13, 2012 noted that the worker had ongoing left sciatic type pains and that she should continue with home exercises and analgesic medication. He indicated that the worker was disabled from work and would be reassessed in two week's time.

On January 16, 2012, the WCB medical advisor who had examined the worker in October 2011 indicated that the worker's recovery had been unaccountably prolonged and that a strain injury would not typically result in total disability. She noted that imaging had not demonstrated any significant structural abnormalities to account for the reported symptoms or associated functional limitations. She noted that the findings in the January 5, 2012 physiotherapy discharge report was that the worker was capable of returning to work with a 10 kg/20 pound lifting/carrying restriction.

The accident employer provided the worker with a modified duty position that involved product inspections starting at four hours per day for the first week.

In a progress report dated February 3, 2012 the treating physician noted that the worker returned to modified duties on January 18, 2012 but was not able to cope due to low back and left sciatic pains.

On March 22, 2012, the treating physiatrist reported that the worker underwent a left greater trochanteric bursa injection.

Following a work site visit on April 4, 2012, it was determined by the WCB case manager that the modified duty position was within the worker's restrictions. It was then arranged that the worker would start work on April 9, 2012 at two hours per day and was to progress to full hours by May 21, 2012. Subsequent file records showed that the worker did not return to work as scheduled based on the advice of her treating physician.

In a note to file dated April 13, 2012, the WCB medical advisor documented that total disability would not be accounted for in relation to the effects of the compensable injury and that she could not support the worker's time off from work. The medical advisor noted that she had spoken with the treating physician and the treating physician did not provide reasons to support the worker's time away from work other than the worker's reports of pain, limping, poor sleep, etc.

On April 17, 2012, the worker was advised by the WCB that the medical information did not support time off work from the graduated return to work program and that benefits would be paid on the basis that she was working as per the return to work schedule.

On April 19, 2012, the employer advised the WCB that the worker came in on April 16, 2012 but only worked 45 minutes and stopped because of extreme pain.

On April 26, 2012, the worker appealed the decision of April 17, 2012 to Review Office.

A WCB chiropractic advisor reviewed reports on file from the worker's treating chiropractor and he authorized six weeks of chiropractic care for the worker.

On June 14, 2012, Review Office determined that the worker was not entitled to full wage loss benefits as she was capable of participating in the graduated return to work program which was slated to start on April 9, 2012.

On July 16, 2012, a WCB medical advisor reviewed the file and opined that there was no requirement for workplace restrictions in relation to the effects of the workplace incident in February 2012.

On August 16, 2012 the worker was advised that in the opinion of the WCB, she had recovered from the compensable injury of February 22, 2011.

On September 20, 2012, the Worker Advisor Office requested Review Office to reconsider its decision of June 14, 2012. The worker advisor stated:

It is our position that the worker is entitled to full wage loss and medical aid benefits beyond April 18 (sic), 2012 because her ongoing low back difficulties are, on a balance of probability, still related to her workplace accident and as a result, she is unable to return to work. We further submit that she is entitled to full wage loss benefits because the alternate duties offered by the employer were not consistent with the WCB-imposed restrictions.

Attached with his appeal, the worker advisor submitted a medical report dated August 24, 2012 by a second physiatrist. The physiatrist's impression was that the worker had no prior history of chronic back and left leg pain prior to the work related injury 18 months ago. He stated that currently, there was evidence of myofascial pain in the left-sided low back and gluteal musculature as well as potentially a component of sacroiliac joint pathology.

Prior to considering the worker's appeal, Review Office met with a WCB medical advisor to discuss the medical information, particularly the report from the physiatrist. The medical advisor's comments of November 26, 2012 were provided to the worker advisor for comment. The worker advisor responded that more weight should be placed on the evidence of the two physiatrists and the worker's physician as opposed to the information provided by a physiotherapist and WCB medical advisor. Review Office then referred the claim to a WCB physiatry consultant to obtain his opinion.

On December 14, 2012, the physiatry consultant stated that there had not been any physical or pathoanatomical diagnosis or structural injury identified for the worker's injury. He felt that early recovery in a few days to weeks post injury would be the expectation. He indicated that he agreed with the content and substance of the opinion and conclusions made by the WCB medical advisor.

On December 18, 2012, Review Office confirmed that the worker was not entitled to full wage loss benefits or further medical aid benefits. Review Office based its decision on the WCB medical opinions outlined on November 26, 2012 and December 14, 2012. Review Office also provided rationale to support that it could not identify evidence to change its previous decision. It determined that the worker was not completely disabled and appropriate work was available. On March 1, 2013, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was requested.

On May 3, 2013, the case was again considered by Review Office to address the issue of whether or not the worker had recovered from the effects of her compensable injury. Based on the amount of time passed since the injury, the normal findings on all test results and numerous treatment modalities received by the worker, Review Office was unable to relate the worker's current level of low back, buttock or leg discomfort to the compensable accident. Review Office concluded that the worker had recovered from the February 22, 2011 accident. The worker advisor appealed Review Office's decision to the Appeal Commission and later provided the appeal panel with reports by the worker's treating physiatrist dated February 6, 2013 and May 7, 2013 for consideration.

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. She is seeking further wage loss and medical aid benefits and is appealing the WCB decision that she has recovered from her workplace injury. 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. Subsection 27(1) empowers the WCB to provide such medical aid as the WCB considers necessary to cure and provide relief from an injury.

Worker's Position

The worker was represented by a worker advisor who provided a comprehensive review of the file. The worker answered questions posed by her representative and the panel with the assistance of an interpreter.

The representative submitted that the worker is entitled to full wage loss and medical aid benefits beyond April 9, 2012 because she was unable to continue working, and continued to require medical treatment as a result of the effects of her compensable injury. He submitted further that the worker had not recovered from the effects of her compensable injury by August 16, 2012 and that the evidence on file supports that her current lower back, left hip, buttock and leg difficulties, which began on the date of accident, continue and are causally related to her workplace accident.

The representative noted that the worker's claim is supported by:

  • consistent documentation of symptoms since the date of accident.
  • reports from four treatment providers, two of which are physiatrists, provide diagnoses of myofascial pain in the gluteal area radiating down the left leg, as well as sacroiliac joint pain.
  • the WCB paid for six weeks of chiropractic treatment up to May 18, 2012, which was recommended by a treating physiatrist based on the diagnoses of myofascial and sacroiliac joint pain.
  • October 24, 2011 WCB call-in examination report noted symptoms and findings consistent with those found by the worker's physicians.
  • treating physiatrist provided trigger point injections which helped alleviate worker's symptoms.
  • loss of earning capacity beyond April 9, 2012 is also related to employer's inability to provide suitable work consistent with the worker's restrictions and the employer's unwillingness to further accommodate worker without medical clearance from her treating physician.

Regarding the worker's return to work on January 18, 2012, the representative noted that by February 3, 2012, the worker had difficulties with the duties, complaining of gradually worsening lumbar and left sciatic pains which she attributed to standing in one place all day. She was working six hours per day. Her physician recommended restrictions allowing the worker to alternate between sitting, standing and walking. The WCB medical advisor agreed with these restrictions. The worker stopped working on February 6, 2012 and full wage loss benefits were reinstated.

The representative noted that a worksite visit took place and that the employer indicated that a stool could not be provided. The worker then attempted a return to work on April 16, 2012 but stopped after 45 minutes due to pain.

The representative disagreed with Review Office which found that a stool was not required and that the accommodation was appropriate. He submitted that the inspection duties were inconsistent with her compensable restrictions. He also noted that the employer was unwilling to continue the accommodation without a note from the worker's physician authorizing her to return to work.

The worker described her pre-accident job which was to bring ingredients (spices) to be mixed in certain products. The duties involved lifting various sized packages, some from floor level, to be added to products. She would get the packages from the store room and use a cart to move them to the area where the product was mixed.

The worker said that she had picked up a 20 kilo bag of ingredients from the floor and immediately felt pain in her back and down her left leg. She saw her doctor the same day. He prescribed physiotherapy. She attended physiotherapy but she was never pain-free.

Regarding the modified duties (inspection duties) the worker and her husband described the inspection duties and the workplace to the panel. The worker advised that she had performed the inspection duties previously for almost 10 years but this was about five years before the injury. The duties involve observing products on a conveyor belt to insure the products were not sticking together. When the products are together she must separate them. The worker said that because of her height, she must bend over to reach the products and that bending and reaching increased her pain. The products move at a fast pace, approximately 120,000 per hour. The worker said that cold air blowing from the freezer which was adjacent to the conveyor belt also worsened her pain. The worker's husband, who also worked for the employer, advised that it was not possible to sit on a stool and do the job.

The worker said she started working at the modified duties for four hours per week and had increased to six hours per week when she had to stop due to pain.

The worker advised that she did her exercises every day while she was off work. She said that on some days she exercised three times. She also said she could perform her household chores including laundry, cooking, and gardening such as planting and watering plants. On weekends in the summer she would travel to the family cottage.

The worker advised that she participated in the reconditioning program. The program was two hours per day for four weeks. When asked whether she found the program to be helpful she replied "No" but agreed that it lessened her pain for two to three hours.

She advised that her physician told her she has not recovered fully. She did not attempt returning to work because her doctor did not agree that she could return to work.

In answer to questions, the worker confirmed that she saw a physiatrist who gave her injections. She said the injections provided relief from pain for only one day.

Employer's Position

The employer did not participate in the hearing.

Analysis

Issue 1. Whether the worker is entitled to full wage loss and medical aid benefits beyond April 9, 2012.

For the worker's appeal to be successful, the panel must find that the worker was unable to return to work and continued to require medical aid as a result of her workplace injury. The panel was not able to make this finding.

The panel reviewed the medical information on the file and notes that the worker has seen numerous healthcare providers and undergone various treatments and tests. The panel has concluded, on a balance of probabilities, that the medical evidence does not support the worker's assertion that she is unable to return to work. In reaching this conclusion the panel relies upon the following:

  • October 21, 2011 opinion of the WCB medical advisor who examined the worker. At the time of the examination, the medical advisor noted that "All appropriate treatment has been provided to date. At this point, it would be safe and appropriate to resume normalizing activity." He also noted that "A structural basis on which to base placing restrictions has not been identified on exam or imaging." He added that restrictions would be based on reported symptoms.
  • June 29, 2012 opinion of the WCB medical advisor that "now five months later, while acknowledging [worker's] continued report of symptoms, considering:
    • the nature of the injury/MOI
    • the diagnosis of lumbar strain
    • the typical natural history of strain injuries
    • the lack of significant structural abnormalities identified on imaging
    • the lack of significant pathology identified by the physical medicine specialist (December, 15 2011 report)
    • the time passed for recovery (18 months)

It is concluded that there is no requirement for workplace restrictions in continuing relation to effects of the workplace incident of Feb 2011."

  • December 14, 2012 opinion of WCB physiatry consultant that "There have been thorough and appropriate investigations of the symptomatic complaints and appropriate trials of initial treatment. At no point has any physical/pathoanatomic diagnosis or structural injury been identified for this injury…No persisting impairment or need for any injury related restrictions would be expected."

The panel notes that the only support for the worker's position that she cannot return to work is from her family physician.

The worker was also seen by two physiatrists, one of whom recommended chiropractic treatment which was subsequently authorized by the WCB. This physiatrist also recommended that the worker receive a treatment modality offered by a second physiatrist. The worker received treatment from a second physiatrist who noted in a May 7, 2013 report that the worker did not continue to improve with treatment. He indicated that "Overall she is much better than her first presentation to clinic in August 2012 but no different than after the February 5, 2013 appointment."

The panel notes the worker's evidence that she received only temporary relief from the injections provided by the physiatrist and returned to her pre-injection state within days of the injections. The panel finds this lack of improvement after receiving the injections suggests the diagnosis of myofascial pain, usually confirmed by positive responses to injection, as proposed by the treating physiatrist is not correct.

The panel notes that the worker was familiar with modified duties, having performed the duties for a period of more than 10 years at an earlier time. The panel finds that the worker was able to take a break and sit after two hours, and that the duties were appropriate and consistent with the restrictions outlined in the final Reconditioning Program Report which recommended a graduated return to work and a 10 kg maximum for lifting and carrying.

The worker's appeal of this issue is dismissed.

Issue 2. Whether the worker has recovered from her compensable injury.

For the worker's appeal to be successful, the panel must find that the worker's continued symptoms are due to her compensable injury. The panel was not able to make this finding. The panel is unable to find a relationship between the worker's ongoing symptoms and the workplace injury. In reaching this decision, the panel relies upon the evidence noted in the reasons above.

The worker's appeal of this issue is dismissed.

Panel Members

A. Scramstad, Presiding Officer
M. Bencharski, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 20th day of June, 2013

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