The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to further benefits with respect to his compensable injury. A hearing was held on January 14, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to further benefits in relation to his compensable injury of November 22, 2007.

Decision

That the worker is entitled to further benefits in relation to his compensable injury of November 22, 2007.

Decision: Unanimous

Background

On December 5, 2007, the worker filed a claim with the WCB for a work-related injury to his low back. The worker reported:

Driver's seat sits crooked (springs and foam warn [sic] out), which means I sit crooked. Lower right back pain. I have written up 3 trucks with the same problem in the past 2 weeks.

The claim for compensation was accepted based on the diagnosis of a right sacroiliac irritation with secondary right myofascial irritation.

In October 2009 and February 2012, the worker filed accident reports with the WCB due to worsening back pain that he related to crooked/slanted seats in his work vehicle. The WCB reinstated the worker's benefits in both instances based on an aggravation or recurrence of symptoms.

Reports on file showed that the worker was treated for pain management and had undergone a four week reconditioning program which ended on September 21, 2012. On September 26, 2012, the worker returned to his work duties but complained of intolerable back pain.

On December 4, 2012, a WCB orthopaedic consultant responded to questions posed by the WCB case manager in relation to the worker's current medical diagnosis and its relationship to the compensable accident. The WCB orthopaedic consultant outlined the following opinion:

1. The right hip and buttock pain was a combination of non-specific LBP (low back pain) and cam impingement of the hip, which is an early manifestation of OA (osteoarthritis). [The physical medicine and rehabilitation specialist] has speculated that the site of LBP generation may be (a) facet OA or (b) SI (sacroiliac) strain or (c) muscle pain or (d) hip impingement. There is no objective evidence to define where the pain is originating.
2. The natural history of non-specific LBP is variable in the extreme. There is no objective medical evidence to define a causal relationship between the workplace injury and continuing LBP. On balance of probabilities, it is more likely that current symptoms are related more to degenerative conditions rather than to the strain injury in the workplace.

On December 6, 2012, the WCB determined that the worker's ongoing low back and right hip difficulties were more likely related to degenerative conditions rather than his compensable strain injury of November 27, 2007.

On January 4, 2013, the treating physical medicine specialist wrote the WCB supporting the position that the worker's pain complaints were work-related. On April 17, 2013, the WCB case manager determined that the specialist did not provide additional objective medical evidence that would warrant a change to his decision of December 6, 2012.

On May 1, 2013, the Worker Advisor Office submitted a report dated August 2, 2012 from an orthopaedic surgeon to support that the worker was entitled to benefits beyond December 20, 2012. The worker advisor contended that the worker's low back and right buttock complaints were related to driving older trucks with seating issues.

On May 24, 2013, the WCB case manager concluded that there was no objective medical evidence to define a causal relationship between the workplace injury and the worker's continuing low back pain. The case manager's decision was based on the findings of the orthopaedic surgeon dated August 2, 2012, the opinion expressed by the WCB orthopaedic consultant of December 6, 2012 and the WCB call-in examination findings of November 19, 2009. On June 7, 2013, the worker advisor appealed the case manager's decision to Review Office.

In a decision dated August 21, 2013, Review Office upheld that the worker was not entitled to further benefits. Review Office stated, in part, that it could not medically account for the worker's current presentation as being related to his original reported injury nor was it able to establish a functional deficit that would substantiate a loss of earning capacity or impairment.

On October 21, 2013, the worker advisor disagreed with Review Office's decision and an appeal was filed with the Appeal Commission.

Following the hearing held at the Appeal Commission on January 14, 2014, the appeal panel requested additional medical information from the worker's treating physical medicine specialist. A report from the physical medicine specialist dated January 24, 2014 was later received and was forwarded to the interested parties for comment. On February 20, 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 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 worker advisor at the hearing. It was submitted that the worker was entitled to benefits beyond December 20, 2012 because the evidence supported that his longstanding right-sided lower back and gluteal difficulties were related to and persist as a result of the performance of his work duties, specifically, driving a delivery truck with poor ergonomic and loose seating. The worker was seeking medical coverage for segmental neuromyotherapy and myofascial trigger point injections he had been undergoing with a physical medicine specialist, as well as reimbursement for lost time from work to attend these treatments. It was noted that the WCB had previously accepted responsibility for the worker's symptoms as a result of operating trucks with improperly aligned and loose seating. If these job duties were sufficient to cause the initial injury, as well as the worker's subsequent loss of earning capacity in late 2009 and again in February 2012, it was questioned why the WCB no longer recognized the connection between these same workplace factors and the worker's ongoing symptoms. The treating physical medicine specialist clearly acknowledged a connection between the worker's difficulties and the inadequate seating in some of the employer's trucks and therefore supported an ongoing cause and effect relationship between clinical findings and longstanding seating issues consistently described by the worker.

Several medical providers wrote that sub-optimal seating in the employer's trucks aggravated, prolonged recovery or caused a recurrence of the worker's low back and buttock symptoms. It was the worker's position that whether his condition was labeled myofascial pain, soft tissue irritation or nonspecific pain, the localized clinical findings in the worker's right lower back and buttock had remained consistent and his symptomatic complaints to the WCB closely followed his assignment to a vehicle with the same seating issues that caused the initial injury. Considering the longstanding history of the worker's difficulties, which had remained consistent over a five year period in terms of diagnosis, clinical findings, pain complaints and a consistent injury mechanism, the worker disagreed with the WCB's determination that he had recovered from the effects of his compensable injury and it was submitted that he is entitled to further benefits.

The Employer’s Position

The employer was represented by an advocate who participated in the hearing by teleconference. It was submitted that the WCB's decision should be upheld as the medical evidence on file indicated that any ongoing problems related to the worker's lower back were the result of his degenerative pathology and not related to his compensable 2007 injury. There was no objective medical evidence linking the worker's pain and symptoms to his compensable injury. The reports of pain were subjective and just because the worker felt pain at work did not mean that the pain was caused by his work. After reviewing all of the evidence in the claim file, the WCB medical advisor concluded that the worker's current pain and symptoms were not related to the compensable workplace injury. It was submitted that strong emphasis should be placed on this opinion because the medical advisor did a thorough investigation of the claim file and based his conclusion on logical and medically substantiated reasoning.

In addition to the lack of objective evidence to establish a causal connection between the worker's symptoms and the workplace, the employer also submitted that there was no functional deficit on the part of the worker to substantiate a loss of earning capacity or an impairment that would entitle the worker to further benefits. The rehabilitation discharge report dated September 19, 2012 stated that the worker demonstrated the ability to return to heavy strength demand work. It was submitted that the employer also provided job modifications which permitted the worker to successfully complete his job duties. As such, there should be no entitlement to further benefits.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits in relation to his compensable injury of November 22, 2007. In order for the appeal to be successful, the panel must find that the worker's ongoing condition is related to the injury he sustained in the November 22, 2007 work related accident. We are able to make that finding.

Following the hearing, the panel requested further information from the treating physical medicine specialist regarding the worker's current treatment plan. By letter dated January 24, 2014, the specialist advised that the worker was being seen monthly to treat myofascial pain in the right gluteal musculature with segmental neuromyotherapy. The worker would consistently report approximately three weeks of reduced pain in the gluteal region radiating down the right leg before a slow insidious return in his symptoms. In the panel's opinion, the fact that the worker did experience some success with the segmental neuromyotherapy treatment suggests that myofascial gluteal pain was at least in part responsible for the worker's ongoing medical condition.

When asked for his opinion on etiology, the specialist advised that the worker's pain may be multifactorial in nature. While there was certainly a myofascial component, he opined that there may be a component of facet joint pain in the lower lumbar spine as well as right sacroiliac joint pain. Pain may also be originating from a previously demonstrated cam-type femoral acetabular impingement.

While facet joint pain and pain from a cam-type femoral acetabular impingement would be pre-existing degenerative conditions not likely related to the workplace accident, both myofascial pain in the right gluteal musculature as well as right sacroiliac joint pain are medical conditions consistent with the original accepted diagnosis of right sacroiliac irritation with secondary right myofascial irritation. This is combined with a situation where, over the years, the worker has been periodically exposed to the same ergonomic problem which initially caused the workplace injury to occur. In the panel's opinion, there is sufficient correlation between the continued exposure and the worsening symptomatology such that we are satisfied on a balance of probabilities that the worker's compensable injury of November 22, 2007 has not completely resolved and it is therefore our decision that the worker is entitled to further benefits in relation to same.

The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
G. Ogonowski, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 25th day of March, 2014