The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to further benefits in relation to her September 16, 2013 compensable injury. A file review was held on November 26, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to further physiotherapy treatment in relation to her September 16, 2013 compensable injury.

Decision

That the worker is not entitled to further physiotherapy treatment in relation to her September 16, 2013 compensable injury.

Decision: Unanimous

Background

On September 16, 2013, the worker was lifting a heavy patient when she injured her low back. The accident was reported to the employer on September 17, 2013. On September 21, 2013, the worker attended a physician for treatment complaining of severe pain and spasm in her low back. The diagnosis was a strain of the low back muscles.

The claim for compensation was accepted based on the diagnosis of a low back strain and the worker was referred to a physiotherapist for treatment. The physiotherapist's initial assessment report dated September 30, 2013 noted a diagnosis of an L2-L3 sprain with muscle strain.

On November 25, 2013, the treating physiotherapist reported that the worker complained of intermittent dull pain in her central low back which increased with lifting, pushing or pulling too hard. Further physiotherapy treatment was recommended as the worker’s condition was improving but she had not fully recovered.

A Doctor First Report with respect to treatment on December 3, 2013 reported the worker had near full range of motion in her lumbar spine, tenderness across the midline at L4, slight SI joint tenderness, right more than left. The worker had normal power reflexes and sensation to legs as well as normal results from the femoral stretch test and straight leg raise. The physician assessed the worker's condition as mechanical low back pain with two episodes of right foot paresthesia and no clinical findings of root compression signs.

On the same day, the worker was seen by a second physiotherapist who diagnosed a lumbar strain disc injury at L4-5 and SI joint hypermobility.

On December 21, 2013, the worker underwent an MRI assessment and the findings were read as showing “Lumbosacral transitional vertebra. Mild diffuse disc bulge at L4-L5. There is no narrowing of central canal nor of the neural foramina.”

The WCB case manager referred the worker's file to a WCB medical advisor to confirm the worker's current diagnosis and on January 9, 2014, the medical advisor opined that the current diagnosis was non-specific non-radicular low back pain. He stated:

At present, the worker's presentation is mostly on the basis of supplied subjective symptoms; objectively low back ROM [range of motion] is materially normal, neurological integrity is intact, and there are no structural spinal changes as the x-ray and MRI are essentially normal. As well, the worker's diagnosis usually sees material resolution by about 12 weeks, and therefore the worker's duration of presentation is somewhat atypical. From an objective medical perspective, the writer is unable to account for the ongoing diagnosis on the basis of the workplace injury, as symptoms by themselves would not constitute sufficient medical evidence.

In a decision dated January 16, 2014, the worker was advised that the WCB was unable to establish a relationship between the original September 18, 2013 workplace injury and her ongoing back condition; therefore, benefits would be paid to January 22, 2014 inclusive.

On January 30, 2014, the worker appealed the above decision to Review Office. The worker stated in her letter of appeal:

During the time after my accident at work I had 3 months of physio with a therapist who was mistreating my injury. If it was properly treated from the start I may have healed quicker. Though there was no nerve damage present in my MRI there still was a bulged disk (sic) and extensive muscle injuries...my doctor and physiotherapist both agree that returning to work full time in January of 2014 would not be an appropriate decision. This would just cause more harm to the bulged disk (sic) that is beginning to finally correct. We are hoping to be ready to return to work full time at the end of February 2014 or during March of 2014.

In a submission to Review Office dated March 11, 2014, an advocate for the employer indicated that they agreed with the WCB decision to end benefits, noting that a muscular back injury without neurologic involvement typically resolves within six to eight weeks. The worker's injury occurred in September 2013 and there were no longer any reported objective findings as of January 2014. As such, there was no basis to pay benefits beyond January 22, 2014.

On May 6, 2014, Review Office determined that there was no entitlement to benefits beyond January 22, 2014. Review Office found that a causal relationship did not exist between the worker's ongoing complaints and the compensable injury of September 16, 2013 based on the diagnosis of a back strain, the duration of time since the workplace accident, the treatment provided and the objective medical findings.

On August 22, 2014, the worker's union representative appealed Review Office's decision to the Appeal Commission. On November 26, 2014, a file review was held to consider the worker's appeal.

Reasons

Applicable Legislation and Policy:

The Appeal Commission is bound by The Workers Compensation Act (the "Act"), Regulations and the policies established by the WCB’s Board of Directors.

The Act defines "medical aid" to include treatment or services provided by a health care provider and states:

27(1) The board 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.

The WCB approves treatments where it determines that the medical aid is necessary to cure and provide relief from an injury resulting from an accident. Authorization of medical aid is subject to the supervision and control of the WCB, as set out in s. 27(10).

Worker’s Position:

The worker, through her union representative, disagreed with Review Office’s decision there is no entitlement to further physiotherapy treatment, stating that a physiotherapy program had been recommended to assist in the worker's recovery from her work-related injury and that the WCB should continue to fund physiotherapy treatment in accordance with s. 27(1) of the Act.

Employer’s Position:

The employer took no position.

Analysis:

The issue for determination is whether the worker is entitled to further physiotherapy treatment in relation to her September 16, 2013 compensable injury. In order for the worker to succeed in this appeal, the panel must find on a balance of probabilities, that at the time of the decision appealed from, the worker required medical aid, in the form of physiotherapy treatment to cure and provide relief from the compensable injury of September 16, 2013.

After a careful review of all the evidence on the file and presented at the hearing, the panel finds that the worker's ongoing medical complaints are not related to the compensable injury. As such, there is no entitlement to the physiotherapy treatment being sought by the worker.

The evidence before the panel indicates that the worker was injured in the course of her employment on September 16, 2013. Despite her injury, she worked another shift on September 18, 2013 and then sought medical attention on September 21, 2013 because of “severe pain and spasm in lower back.” At that time, the treating physician diagnosed the worker with a strain of the lower back muscles. Bed rest, physiotherapy and pain relief were prescribed.

The worker was assessed for physiotherapy a few days later. The physiotherapist’s report of September 30, 2013 includes a diagnosis of lumbar sprain at L 2/3 with a strain on the right. The worker remained off work until late October and continued with physiotherapy. A further report from the physiotherapist dated December 2, 2013 sets out a diagnosis of lumbar sprain, with ongoing restrictions and noted that the worker was improving but not yet fully recovered. The physiotherapy discharge assessment dated January 13, 2014 notes that at discharge on November 25, 2013, the worker was much improved.

This is consistent with the clinical evidence found by the worker’s own physician in early December 2013. In a report dated December 3, 2013, the physician noted near full range of motion in the lumbar spine, tenderness across the midline L4 area with slight SI joint tenderness, greater on the right than the left. The physician found normal power reflexes and sensation to the legs as well as normal results from the femoral stretch test and straight leg raise test. The physician diagnosed mechanical low back pain, noting two episodes of right foot paresthesia and no clinical findings of root compression signs. Given the worker’s ongoing reported complaints, including ongoing pain rated at 8/10 and no reported improvement from physiotherapy, the physician ordered a lumbosacral x-ray and MRI.

On December 17, 2013, the worker’s physician makes nearly the same clinical findings as on December 3, 2013, finding near full range of motion in the lumbar spine, tenderness across the midline L4 area with slight SI joint tenderness, greater on the right than the left. The worker’s femoral stretch test is normal but right straight leg raise is limited to 30 degrees due to right sided back pain. The diagnosis remains mechanical low back pain with episodes of right foot paresthesia.

The physician’s December 2013 diagnoses are consistent with the mechanism of injury and the early medical evidence on file.

On December 3, 2013 the worker was also assessed by a new physiotherapist. In a report dated December 7, 2013, the second physiotherapist diagnosed lumbar strain, disc injury L4-5 and SI joint hypomobility. Shortly afterward, on December 21, 2013, MRI testing noted “mild diffuse disc bulge not resulting in narrowing of the central canal” at L4-L5 and normal SI joints.

Contrary to the comments in the MRI report, we note that the worker, in her presentation to the Review Office stated that: "Though there was no nerve damage present in my MRI there still was a bulged disk (sic) and extensive muscle injuries…" This is not consistent with the medical evidence on file. The WCB Medical advisor, on January 9, 2014, interpreted the MRI findings as essentially normal.

Further, the WCB Medical Advisor goes on to note that:

…the worker’s duration of presentation is somewhat atypical. From an objective medical perspective, the writer is unable to account for the ongoing diagnosis on the basis of the workplace injury….

On this basis, the WCB terminated medical aid benefits as of January 22, 2014.

In the panel's view, the medical history to this point in time consistently discloses a sprain/strain type of injury with no evidence of disc or neurological involvement. This condition was essentially resolved by the end of 2013/early 2014.

However, the worker's medical presentation changes significantly in early 2014. The worker was again assessed by her physiotherapist on February 4, 2014. This report, dated April 15, 2014, notes a new presentation of disc issues, described as “like posterior derangement, disc?” Examination findings included a decreased range of motion in the lumbar spine, increased difficulty with the straight leg raise test and an antalgic gait. At the time of this assessment, the worker had determined to pursue chiropractic treatment instead of further physiotherapy.

The clinical medical findings from the February 4, 2014 physiotherapy assessment are the best evidence available of the worker’s status as January 22, 2014 when her benefits were terminated. The findings from the April 15, 2014 report suggest a change in the worker’s condition over time and a shift in diagnosis. In the panel's view, the available evidence does not establish a causal link between the original mechanism of injury and this shift in diagnosis from a muscular/soft tissue injury to a neurological issue five months post-accident.

In order to find that the worker is entitled to further physiotherapy treatments beyond January 22, 2014, we must be able to find, on a balance of probabilities that the treatment is required to cure and provide relief from the compensable injury. The evidence here does not support such a finding. The mechanism of injury is consistent with the original diagnosis of mechanical low back pain, but does not account for the shift in diagnosis outlined in the April 15, 2014 physiotherapy report.

Based upon the medical evidence before us, we find on a balance of probabilities that the medical aid required is not required to cure and provide relief from the compensable injury of September 16, 2013. We therefore have determined that the worker is not entitled to further physiotherapy treatment in relation to her September 16, 2013 compensable injury.

Panel Members

K. Dyck, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

K. Dyck - Presiding Officer

Signed at Winnipeg this 8th day of January, 2015