The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing two decisions that were made in relation to her claims with the Workers Compensation Board ("WCB") for injuries she sustained in work-related accidents on August 4, 2011 and December 6, 2012. A hearing was held on July 23, 2014 to consider these matters.

Issue

Claim for injury dated August 4, 2011

Whether or not the worker is entitled to further benefits in relation to the August 4, 2011 compensable injury; and

Claim for injury dated December 6, 2012

Whether or not the worker is entitled to further benefits in relation to the December 6, 2012 compensable injury.

Decision

Claim for injury dated August 4, 2011

That the worker is not entitled to further benefits in relation to the August 4, 2011 compensable injury; and

Claim for injury dated December 6, 2012

That the worker is not entitled to further benefits in relation to the December 6, 2012 compensable injury.

Decision: Unanimous

Background

2011 Claim

While employed as a licensed practical nurse on August 4, 2011, the worker slipped and fell at work and landed onto her back. The worker reported injuries to her neck, right shoulder, left hip and low back as a result of the accident. The accepted compensable diagnoses were neck, right shoulder, left hip and low back muscle strain. File records showed that the worker attended physiotherapy treatments and returned to her full regular duties by February 14, 2012.

On April 5, 2012, the worker called the WCB to advise that she was working her regular shifts but continued to have pain in her hip, neck and shoulder. The worker reported that her doctor and physiotherapist felt that she needed more physiotherapy treatments to help maintain and manage her pain so that she could continue working.

A doctor's progress report dated May 17, 2012 indicated that the worker had low back pain radiating to the left hip, electrical like pain down to her left thigh, with no weakness or numbness. The worker also had right-sided neck pain, felt stiff and there was no weakness, numbness and no radiation. Examination of the lumbosacral spine revealed no redness, no swelling and tenderness in the left paraspinous muscle at L4-5. There was good range of motion and straight leg raising test was normal. The left hip examination showed no redness and was not swollen. There was tenderness over the trochanteric bursa. There were no deformities present and there was good range of motion. There was tenderness in the right trapezius muscle at C5-6-7 level. There was restricted range of motion. The worker was assessed with myofascial pain and subtrochanteric bursitis.

At the WCB's request, the treating physician submitted a narrative report dated July 19, 2012 outlining his examination findings of the worker's neck, low back and left hip since the August 4, 2011 accident. He noted that the most recent diagnoses would be myofascial pain and neck sprain and left hip bursitis. At her last visit on June 7, 2012, the worker stated that she was doing better with less pain on the left hip and was attending physiotherapy twice weekly. It was the physician's opinion that the worker had chronic myofascial pain related to her previous injury at work in view of her new symptoms of left hip bursitis.

On July 23, 2012, the treating physiotherapist provided the WCB with an update of the worker's physiotherapy treatment. He reported that the worker attended physiotherapy between May 16 and June 25 focused on her low back and left buttock/hip. The diagnosis was chronic mechanical low back and gluteal strain, with trigger points in the gluteus maximus and piriformis contributing to referred pain patterns in the left leg and that she also had recurring trochanteric bursitis. The physiotherapist stated that these treatments provided the worker with short term relief of her symptoms. The physiotherapist's opinion was "..the current problems definitely relate to the original injury. Her symptoms are consistent with her initial injuries to her low back and left buttock/hip and are a chronic manifestation of same."

At the case manager's request, a WCB medical advisor reviewed the worker's claim file to determine whether there was a relationship between the worker's original compensable diagnosis and the current diagnosis. On August 25, 2012, the medical advisor stated:

• the initial diagnosis of the August 4, 2011 workplace accident was likely a strain of the low back and neck. This opinion was based on hospital records dated August 4, 2011, the diagnosis made by the worker's treating physiotherapist the day following the accident and the August 10, 2011 doctor's progress report.
• the natural history of a strain was improvement over four to eight weeks.
• the current diagnosis was non-specific neck and low back pain.
• the current neck and low back pain was related to the worker's pre-existing degenerative spondylosis, reportedly documented on the August 4, 2011 cervical and lumbar spine x-rays rather than the August 4, 2011 workplace accident.
• there was no objective evidence of an aggravation or enhancement of the pre-existing changes nor would the described mechanism of injury be expected to produce any structural spinal alteration.

By letter dated September 13, 2012, the worker was advised of the WCB's decision that she had recovered from the effects of her compensable injury and that responsibility for her claim would end on September 20, 2012. This decision was based mainly on the WCB medical opinion dated August 25, 2012.

2012 claim:

On December 6, 2012, the worker reported that she was transferring a patient from a vehicle to a wheelchair when the patient's left leg gave out and he landed onto the worker's side. The worker indicated that she used her body to push the patient back into the wheelchair. As a result of the incident, the worker reported injuries to her back, left leg, shoulder and neck.

On December 6, 2012, the worker was diagnosed with a low back strain by her treating physician.

The claim for compensation was accepted and benefits were paid to the worker while she underwent chiropractic and physiotherapy treatments.

On January 2, 2013, the worker underwent x-rays of the lumbar spine which were read as follows:

There are 4 lumbar vertebrae with partial sacralization of L5, (sic) is a scoliosis of the lumbar spine convex right is disc space narrowing at L4-L5 and mild spondylosis throughout the lumbar spine. The SI joints are normal. There is no change from August 2011. IMPRESSION: Degenerative changes as described. No acute abnormality.

On January 25, 2013, the treating physician reported that the worker's back strain was improving and that she had myofascial pain. Work restrictions were outlined and file records showed that the worker returned to work on February 4, 2013 starting at four hours per shift.

On March 11, 2013, the worker saw a physician at a sports medicine clinic and was diagnosed with mechanical lumbar pain - possible associated radicular component left leg at L5.

On April 17, 2013, the worker underwent an MRI assessment of the lumbar spine.

The worker's file was reviewed by a WCB medical advisor on April 22, 2013 at the request of the case manager. The medical advisor's opinion was as follows:

• the initial diagnosis of December 6, 2012 was a low back strain.
• the treating physician offered a diagnosis of myofascial pain. Based on his review of the file, the medical advisor felt that the worker's current diagnosis was nonspecific non-radicular low back pain.
• it was currently unlikely that the effects of the December 6, 2012 workplace injury continued to be the cause of her complaints.
• the file review failed to reveal the presence of a significant pre-existing condition.
• a graduated return to work should serve to assist in reconditioning the worker.
• regarding the MRI, "Findings suggestive of nerve root irritation are not reported. The findings reported of lower back tenderness and hip area tenderness are non-specific and are unlikely to reflect the ongoing effect of a soft tissue injury occurring 4 months ago."

On April 25, 2013, the worker advised the WCB that she sought medical treatment the day before as she experienced increased spasms and pain in the back, hip and leg area. In a further telephone conversation on April 29, 2013, the worker stated that there were no accidents or new injury and she did not know why her pain had increased.

On April 26, 2013, the WCB medical advisor made the following comments:

"There is a disc protrusion at the L5-S1 level which may contact the right L5 nerve root. This finding does not correlate with the healthcare provider reports of pain in the lower back and left hip/thigh. It continues to appear that the diagnosis is as stated and that the claimant could safely continue to increase her workplace activities on a graduated basis. A significant pre-existing condition is not apparent."

By letter dated April 29, 2013, the WCB advised the worker that based on the mechanism of injury, the accepted diagnosis, test results, treatment to date and opinion of the WCB medical advisor, it was felt that she had recovered from the effects of her compensable injury and that any ongoing symptoms were unrelated to the December 6, 2012 compensable injury.

In early December 2013, the worker's union representative submitted an appeal to Review Office requesting reconsideration of the adjudicative decisions made on the worker's 2011 and 2012 claim files. The union representative stated in part:

"[The worker] has been in and out of the workplace over the past two years. She has not had a consistent healthcare provider because of limitations of resources in a rural setting. She has deconditioned greatly and we have provided an assessment from Dr. [physical medicine and rehabilitation specialist] that recommends a focused reconditioning program to support a gradual return to work plan which likely would result in complete recovery. I believe that had [the worker] had access to consistent and appropriate treatment that she would not be experiencing the problems with pain management at this current time. Her pain complaints have been consistent all along and she believes that she never has completely recovered from her original injury. We ask that you...reimburse all missed work shifts that are related to her original injury, subsequent secondary injury and all treatment related costs."

On January 14, 2014, the employer's advocate wrote to Review Office outlining the position that there was no substantive medical information to link the worker's ongoing problems with either workplace injuries. The advocate noted that the worker's sprain/strain type injuries would not have resulted in long-term symptomology nor long-term disability.

On February 12, 2014, Review Office determined that the worker was not entitled to further benefits in relation to her August 4, 2011 compensable injury or to the December 6, 2012 compensable injury.

With respect to the 2011 claim, Review Office accepted the WCB medical opinion outlined on August 25, 2012 that the August 4, 2011 compensable accident was likely a strain of the low back and neck and that the worker's current neck and low back pain was related to pre-existing degenerative spondylosis rather than the August 4 workplace accident. Review Office also reviewed the medical report dated October 15, 2013 authored by the treating physical medicine and rehabilitation specialist. Review Office concluded that a causal relationship did not exist between the clinical findings noted in the report and the August 4, 2011 compensable injury when considering the mechanism of injury, the treatment provided and the time that had passed (approximately 26 months).

With respect to the December 6, 2012 compensable injury, Review Office was unable to find that the worker had a loss of earning capacity and required medical aid after May 3, 2013 due to the December 6, 2012 accident.

Review Office referred to medical reports on file as well as x-ray and MRI results and stated that it did not find the evidence to support that the worker's lower back condition was causally related to the December 6, 2012 compensable injury.

Review Office referred to the April 22, 2013 WCB medical opinion that the current diagnosis was non-specific non-radicular low back pain and opined that it was unlikely that the compensable injury continued to be the cause of the worker's complaints. It was also unable to account for the worker's sudden onset of acute symptoms that occurred on April 24, 2013 as being causally related to her compensable injury.

With respect to the October 2013 report from the treating physical medicine and rehabilitation specialist, Review Office did not find the evidence to support a cause and effect relationship between the functional capabilities recorded in October 2013 and the compensable injury of December 6, 2012 based on the limited clinical findings.

On March 24, 2014, the worker's union representative appealed Review Office's decisions to the Appeal Commission and an oral hearing was convened.

Reasons

The worker has two accepted claims for a workplace injury. She is seeking further wage loss and medical aid benefits in relation to these claims.

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. Subsection 27 (1) of the Act provides that the WCB may "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Worker's Position

The worker was represented by her union's WCB advocate. The worker's representative made a submission on behalf of the worker. The worker and her representative answered questions from the panel.

The worker's representative submitted that the worker never recovered from the workplace accidents. She reviewed the injuries and treatments. She submitted that the worker's sprain/strain injuries led to a chronic pain condition. She noted that the worker's family physician diagnosed myofascial pain in July 2012. She said that the WCB did not investigate the worker's chronic pain complaints, that the worker was never called in to see a WCB medical advisor and that there was no referral to the WCB Pain Management Unit. She submitted that chronic pain and myofascial pain are consistent throughout the file, but that the WCB failed to address it.

The worker's representative stated that the diagnosis which the worker is relying upon in the appeal is myofascial pain/chronic pain. She said that no one has found the cause for the pain and noted there is no identifiable physical injury (like a broken leg) to account for the complaints. She also noted that the complaints do not correlate to the MRI findings and that there is no indication of disc issues in the MRI.

Regarding treatment, the worker's representative noted that the worker was seen by a chiropractor and physiotherapists in addition to her family physician. She was also seen by an anesthesiologist who referred the worker to an orthopedic surgeon. The orthopedic surgeon declined to see the worker as a patient. The worker attended a rehabilitative assessment which included a physical medicine and rehabilitation specialist. In 2014 the worker saw a physician at a pain clinic.

The worker described her injuries, symptoms, treatments and progress throughout both claims. She disagreed with the WCB's position that her pain is due to her pre-existing condition. She said that her pre-existing condition did not bother her before the accidents and that it is not the source of her current pain. She said that the MRI suggests right sided problems but she has never had symptoms on the right, only on the left.

The worker said that she attended a pain clinic and received an injection in her left piriformis muscle from the physician at the clinic. She advised that two hours after the injection, she had no relief. She is to see the pain clinic physician again in October 2014.

Regarding her current condition, the worker advised that she is feeling better because she can pace herself. She said her pain depends on the day and on what the muscles decide to do. She said that she is committed to recovering and has used her own resources to get better, including paying for physiotherapy. She advised that she is not currently working but a return to work meeting is being scheduled.

In closing, the worker's representative submitted that the WCB failed to look at the worker's difficulties and that it should have looked into the issue of chronic pain. She noted that the worker has invested in her recovery but has not had access to appropriate treatment providers. She disagreed that the cause of the worker's pain was her degenerative back condition. She asked that the Appeal Commission seek out further medical opinion and treatment.

Employer's Position

The employer was represented by an advocate who made a submission on behalf of the employer. He noted that the employer agrees with the WCB's decisions.

The employer representative noted that the 2011 workplace injury has been diagnosed as a sprain/strain and that the worker graduated back to work, beginning September 19, 2011 over a period of a couple of months, resuming full/regular duties by the end of December 2011. He said the 2012 injury was also a sprain/strain injury. He said that neither injury would result in long-term symptomology. He noted that by May 2013 the WCB ended responsibility as it found the worker's symptoms and disability were not related to either injury.

Regarding the worker's position that the worker's condition is due to the cumulative effect of all the worker's work injuries, he noted that the WCB has ended responsibility on all the claims including a 1995 claim and early 2011 claim.

The advocate submitted that the chronic pain being cited by the worker's advocate is due to her pre-existing degenerative back condition. He suggested that that the worker's myofascial pain issue is best dealt with in the sphere of the worker's long term disability claim.

Analysis

There are two claims before the panel. The worker's representative suggested that the claims be treated as a cumulative injury claim which resulted in chronic pain. In addition to the two claims before the panel, the worker's representative asked that the panel include a claim from 1995 and another 2011 claim in considering the cumulative impact of the worker's duties on her health.

The panel finds that a cumulative injury claim has not been filed with or addressed by the WCB and accordingly the panel is not able to address the issue of a cumulative claim. As well the panel finds that it is not able to consider the 2005 claim and the earlier 2011 claim as ongoing entitlements have not been addressed by the Review Office on those claims. The panel is able to address the August 4, 2011 claim and the December 6, 2012 claim on their individual merits.

1. Whether the worker is entitled to further benefits in relation to the August 4, 2011 compensable injury?

For the worker's appeal of this issue to be successful, the panel must find that the worker did not recover from the August 4, 2011 workplace injury and continues to sustain a loss of earning capacity and requires medical treatment as a result of the injury. The panel was not able to make this finding.

The panel carefully considered all the evidence with respect to this workplace injury, but could not find, on a balance of probabilities, that the worker continues to have a wage loss or requires medical treatment due to the injury. The panel notes the original diagnosis was a strain/sprain affecting the worker's neck, right shoulder, lower back and left hip. The panel finds that this diagnosis was consistent with the mechanism of injury, the reported symptoms and findings. The panel finds that the worker is not entitled to further wage loss or medical aid benefits with respect to this claim. The panel notes the WCB advised the worker that she was not entitled to benefits beyond September 20, 2012.

In support of these findings, the panel considered the reports from the treating physician between the date of injury and December 2011. The panel notes that the physician reported mostly normal findings upon examination on November 16, 2011:

C-spine Examination : No redness. Not swollen. Not tender. No deformities. Restricted ROM. Bony palpation is normal.

Rt. shoulder: Tenderness over origin of long head of biceps, flexion, extension adduction good ROM.

LS-spine Examination : Not tender. Good ROM. Straight Leg Raising Test normal.

Motor and sensation normal.

The physician examined the worker again on December 21, 2011, and reported normal findings and advised that the worker could return to full work duties on January 1, 2012.

The panel notes that the worker returned to full duties but that her condition appears to have waxed and waned. The panel finds this to be consistent with the worker's pre-existing degenerative condition which was noted on the x-rays of August 4, 2011 and January 2, 2013.

The panel accepts the WCB medical advisor's August 25, 2012 opinion that the worker's diagnosis was non-specific neck and low back pain. The medical advisor commented that the pain was likely related to the worker's pre-existing degenerative condition and that there was no evidence of an aggravation or enhancement of the pre-existing condition.

2. Whether the worker is entitled to further benefits in relation to the December 6, 2012 compensable injury.

For the worker's appeal of this issue to be successful, the panel must find that the worker did not recover from the December 6, 2012 workplace injury and continues to sustain a loss of earning capacity and requires medical treatment as a result of the injury. The panel was not able to make this finding.

The panel notes that the original diagnosis provided by the treating physician was low back strain. The panel finds that this diagnosis is appropriate given the mechanism of injury, original symptoms and findings.

The panel accepts and places weight on the WCB medical advisor's review and comments dated April 22, 2013 in which he stated the current diagnosis is nonspecific non-radicular low back pain. Also, findings suggestive of nerve root irritation are not reported. A graduated return to work should serve to assist in reconditioning the claimant. While the need for compensable restrictions is not validated, he suggested a graduated return to work with temporary reduced lifts.

The panel also has reviewed the MRI findings of April 17, 2013 which indicate a right-sided disc protrusion at the L5-S1 but finds that this is medically unlikely to be the cause of the worker's left leg symptoms.

Chronic Pain

With respect to the worker's view that she suffers from a myofascial pain/chronic pain condition, the panel reviewed the medical reports but finds that the reports do not support a finding that she suffers such a condition as a result of either the 2011 or 2012 injuries. The panel notes that the treating physician provided a diagnosis of myofascial pain in his May 17, 2012 report to the WCB but did not provide any findings to support this diagnosis.

The panel notes the worker attended a rehabilitation assessment on October 9, 2013 which included a complete neurologic and musculoskeletal examination with a physical medicine and rehabilitation specialist. The panel notes that the examination report identified limited clinical findings and did not identify a pain condition. The examination report concluded that "There were limited findings on the current clinical examination, restricted to subjective ones." Given the limited findings, the panel is unable to relate the findings to the 2011 or 2012 injuries.

The panel also notes that both incidents involved strain/sprain injuries. The worker received significant treatment after each injury, including chiropractic care and physiotherapy. She recently was treated by a pain specialist and reports that she did not receive relief from the injection to piriformis muscle.

The worker's appeal of both issues is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 2nd day of September, 2014