The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her current back difficulties were not caused by her compensable accident of February 28, 2012.

A hearing was held on December 9, 2013 to consider the matter.

Issue

Whether or not the worker's current back difficulties are a consequence of the February 28, 2012 compensable injury.

Decision

That the worker's current back difficulties are not a consequence of the February 28, 2012 compensable injury.

Decision: Unanimous

Background

On March 7, 2012, the worker filed a claim with the WCB for injuries to her upper and low back as well as both shoulders which she attributed to the following work-related accident on February 28, 2012:

I was lifting a manhole cover (approximately 80 - 100 pounds) with a hook and I started pulling the manhole cover off and it was partially frozen and I felt a pull in my middle upper back and shoulders. I had both hands on the hook and I was in a squat position pulling upwards with my legs.

The claim for compensation was accepted based on the diagnosis of a back strain and the worker returned to work in mid March 2012, performing lighter duties. On April 11, 2012, the worker resumed regular sampling duties.

In August 2012, the worker advised the WCB that she was having ongoing issues with her upper and low back which she related to the February 2012 work-related incident.

At the request of the case manager, a WCB medical advisor reviewed the worker's file on September 12, 2012 and stated:

1. The current diagnosis appears to be non-specific low back pain, given the August 30, 2012 report from the physiotherapist, which documents a normal lower extremity neurological examination with no clear evidence of increased dural tension. It appears that [the worker] has lately complained of left leg paraesthesias to the toes and (more recently) of left leg weakness. At this time, it is recommended that the MRI requested August 16, 2012 by a sports medicine physician be expedited. Once the report on same is on file, please refer the file back to the writer…

2. A clear relationship between the current symptoms and the February 28, 2012 workplace accident has not been established, given that [the worker] indicated on August 17, 2012 that she returned on April 11, 2012 to her regular sampling duties and was able to work with "minimal discomfort." So she went on to state that one to two months later, she developed increasing pain with symptom evolution which came to include pins and needles in the left toes. In another note, also dated August 17, 2012, [the worker] reported that she only returned to her regular duties in June 2012. The employer was asked about this issue and their response does not clarify the question of when [the worker] returned to normal duties.

The normal history of a strain is of improvement over time. In [the worker's] case, it appears that symptoms had improved, as expected, but then worsened over the summer. This course is atypical. According to the September 5, 2012 correspondence, the employer alleges that [the worker] informed him that the increased symptoms subsequent to June 25, 2012 were related to weekend activities. If this is the case, it would appear then that the current presentation is not related to the February 28, 2012 workplace accident."

Subsequent to the medical advisor's comments, file information showed that the worker underwent an MRI assessment of her lumbar spine and was also referred to a neurologist. As the appointment with the neurologist would take approximately four months, a WCB call-in examination was arranged and took place on December 13, 2012. Following the examination, the WCB orthopaedic consultant provided the following clinical impression of the worker's condition:

1. It was not possible to make an orthopaedic diagnosis to account for the current symptoms. The MRI findings of the lumbar spine are unlikely to be related to the current symptoms.
2. The gradual onset and progression of lower limb symptoms suggest that it is unlikely that the current symptoms are related to the workplace reported injury, on balance of probabilities.
3. Apart from pending nerve conduction studies and EMG's to detect subtle neurological damage, there are no further investigations that I can recommend.

In a decision dated December 20, 2012, the WCB case manager determined that a relationship did not exist between the worker's current back difficulties and the compensable injury of February 28, 2012 based on the WCB medical opinion of December 13, 2012.

Following receipt of nerve conduction study results and a report from a neurologist dated January 17, 2013, the worker's file was again reviewed by the WCB orthopaedic consultant on February 28, 2013. The consultant noted that the neurologist's report stated "no definite electromyographic findings to suggest ongoing lumbosacral radiculopathy on the left." The consultant stated that this finding supported the conclusions of the WCB call-in examination. He felt there were no objective medical findings to support a relationship between the worker's current symptoms and the workplace injury. Based on this medical opinion, the worker was advised on March 5, 2013 that no change would be made to the previous adjudicative decision.

On March 21, 2013, the worker's union representative submitted that there was a relationship between the work injury of February 28, 2012 and the worker's current back difficulties. A copy of the submission was forwarded to the employer's representative for comment and his response is on file dated April 22, 2013.

In the interim, a report was received from the neurologist who saw the worker on May 6, 2013 for an assessment of her back pain and leg paresthesias. The neurologist said he found no obvious significant neurologic/neuropathic lesion underlying the symptomatology. He felt the worker may well have some myofascial pain in her left leg, possibly a focal peroneal neuropathy but without any overt dysfunction.

On May 9, 2013, the WCB orthopaedic consultant reviewed the May 6, 2013 report and stated that it was not possible to explain the reported symptoms in relation to the workplace accident.

On May 15, 2013, the worker was advised that the report of May 6, 2013 had been reviewed and the WCB was still unable to establish a relationship between the workplace injury of February 28, 2012 and her current back difficulties.

In a decision dated July 8, 2013, Review Office upheld that the worker's back difficulties were not a consequence of the February 28, 2012 compensable injury. In making its decision, Review Office considered all the medical information on file as well as e-mail correspondence from the worker dated August 17, 2012 and December 18, 2012. Review Office concluded that the worker's thoracic and lumbar difficulties in June 2012 were caused by the low back exercises she performed rather that the compensable injury. On August 20, 2013, the worker's union representative appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Following the hearing, the appeal panel requested additional medical information from the worker's treating physician. The medical reports were then provided to the worker's union representative for comment. On January 30, 2014, the panel met further to discuss the case and render its decision.

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 4(1) provides:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

The Worker’s Position

The worker was assisted by a union representative at the hearing. The position advanced on behalf of the worker was that her current back difficulties were a consequence of the February 28, 2012 compensable injury. It was submitted that on the balance of probabilities, the worker had not recovered from the original injury by the time she returned to the regular rotation of duties. The worker was on light duties for four weeks and she was assigned to duties which required no heavy lifting until mid-April. She then started back on her regular rotation. From mid-April until June 2012, the worker was required to perform physical duties which involved lifting manhole covers. She worked through the discomfort by using medication which had been prescribed to her and by working for four days then having three days off to rest and cope with the pain. As of May 18, 2012, her supervisor took her off the regular rotation as her condition had become worse but the worker still had to remove manhole covers once or twice a week. She did not seek medical attention because she had been told back in March that the injury could take months to heal. She continued to perform her duties in discomfort until the pain progressed to a point where she had to seek medical attention in June 2012. It was submitted that the increase in pain experienced by the worker was a recurrence of the original compensable injury based on the sequence of going from the regular rotation to lighter duties and that there was a consistent diagnosis with that of the original February 28, 2012 injury.

The Employer’s Position

A representative from the employer appeared at the hearing. The employer’s position was that the evidence on file failed to establish the necessary nexus between the treatment commencing on June 21, 2012 and the compensable incident of February 28, 2012. There was no further activity on the worker's WCB claim from the time that she resumed work in March 2012 until she contacted the WCB on August 17, 2012. At that time, she indicated she was having ongoing problems with her back which she related to the workplace accident. No medical attention had been sought by the worker during the period March 12 to June 21, 2012. It was submitted that if the removal of manhole covers were, in fact, causing an aggravation of the worker's back condition during the period April 10 to May 17, 2012, one would expect that she would have sought medical attention during that specific period rather than five weeks after she ceased that particular activity. Effective May 18 and continuing until she booked off sick on Monday, June 25, 2012, the worker had been performing work of a sedentary nature. The employer noted that the file indicated that the worker had worked with a personal trainer on Saturday June 23, 2012 and its position was that this session either caused a new and specific injury or aggravated a pre-existing condition in the thoracic and lumbar areas which caused the worker to seek medical attention on June 25, 2012.

Analysis

The issue before the panel is whether or not the worker’s current back difficulties are a consequence of the February 28, 2012 compensable injury. In order for the appeal to be successful, the panel must find that the worker has continued to suffer from the effects of the injuries she sustained in the February 28, 2012 workplace accident. We are not able to make that finding.

The worker's initial compensable diagnosis was a strain/sprain injury to the thoracic and lumbar sacral spine. In her Worker Incident Report the worker described feeling a pull in her middle upper back and shoulders. In a conversation with the WCB, the worker indicated she was primarily having issues with the mid to upper back, but that she had started to have lower back pains as well. The worker continued to work for three more days until the end of the week, then had the weekend off. The pain worsened over the weekend so on Monday, March 5, 2012, she went to the chiropractor and was advised to stay off work. The worker remained off work until March 12, 2012, when she returned to modified duties. According to the worker's email of August 17, 2012, on April 11, 2012 she returned to regular sampling duties with minimal discomfort.

The key time periods to be considered by the panel are from April 11 to May 17, 2012 when the worker resumed her regular sampling duties, and May 18 to June 25, 2012 when the worker's duties were modified so she was only required to remove a manhole cover once or twice per week. The question is whether or not the evidence supports the worker's position that she experienced an increase in pain as a recurrence of the original injury as a result of resuming her work duties.

On a balance of probabilities, the panel finds that the evidence does not support a continuation of the original strain/sprain injury to the thoracic and lumbar sacral spine. In particular, the panel relied on the following:

• As indicated by the WCB medical advisor in her opinion of September 12, 2012, the normal history of strain is improvement over time. The worker's statement that she was able to resume regular sampling duties on April 11, 2012 with minimal discomfort is consistent with an almost resolved strain injury.
• The worker's evidence was that when returning to regular duties on April 11, 2012, she in fact was still experiencing back pain but pushed through as she understood that it could take months for this type of injury to heal. The worker indicated that she thought that after her 6 week rotation of sampling, she would be back on office duties and would have more time to heal. This does not explain, however, why the worker's condition continued to become increasingly more severe, given her duties were significantly lighter after May 18, 2012.
• At the hearing, the worker indicated that during the period when she was performing her regular sampling duties and pulling off manhole covers 10 to 15 times per day, her pain would be in the range of 3 or 4 out of 10 on the Monday, then by the end of the week it would be at 6 or 7. By the time she saw the physiotherapist on June 21, 2012, the pain was described as 8 out of 10, which the panel views as being a very high level of pain.
• The worker was a competitive athlete and her evidence at the hearing was that although she did not return to kickboxing after the injury at work, she did attempt a class or two in about April, 2012. The worker advised that due to the pain, she was not able to train and after a few attempts, she discontinued. Participating in the sport, however, suggests that the worker's condition had been improving as opposed to steadily deteriorating. Similarly, consulting a personal trainer and performing challenging exercises such as a reverse crunch and morning glory bends with a barbell would suggest an improved status rather than one which was steadily worsening.
• There was a marked change in presentation in late June 2012. On the weekend of June 23, 2012 the worker had been working with a personal trainer when she experienced a significant increase in pain such that she was required to seek medical attention on June 25, 2012 and her earning capacity became impaired.
• Following June 25, 2012, the worker became re-engaged with seeking treatment from medical doctors. Notably, she was being investigated for lower extremity radicular symptoms. The September 12, 2012 opinion of the WCB medical advisor and the December 13, 2012 opinion of the WCB orthopaedic consultant both indicated that the worker's current symptoms (the gradual onset and progression of lower limb symptoms) could not be related to the February 28, 2012 workplace accident. There is no contrary medical opinion which would support a causal relationship between the worker's symptoms post-June 25, 2012 and the original workplace accident.

In the panel's opinion, the worker's presentation from late June 2012 and onwards was sufficiently changed such that we are unable to relate it back to the workplace accident of February 28, 2012. Although the worker states that she had been experiencing the same pain that she initially had, the panel is not satisfied on a balance of probabilities that the evidence supports this statement. We therefore find that the worker's current back difficulties are not a consequence of the February 28, 2012 compensable injury. The worker's appeal is denied.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 25th day of February, 2014