Decision #88/15 - Type: Workers Compensation
Preamble
The worker is appealing a number of decisions made by ReviewOffice of the Workers CompensationBoard ("WCB") with respect to her claims for accidents occurring inFebruary 2010 and July 2013. A hearingwas held on May 21, 2015 to consider these matters.
Issue
Claim for accident occurring February 3, 2010:
Whether or not the worker's diagnosis of myofascial pain syndrome is causally related to the February 3, 2010 compensable accident; and
Whether or not the worker is entitled to further physiotherapy treatment.
Claim for accident occurring July 29, 2013:
Whether or not the worker is entitled to benefits after February 27, 2014.
Decision
Claim for accident occurring February 3, 2010:
That the worker's diagnosis of myofascial pain syndrome is not causally related to the February 3, 2010 compensable accident; and
That the worker is not entitled to further physiotherapy treatment.
Claim for accident occurring July 29, 2013:
That the worker is not entitled to benefits after February 27, 201
Decision: Unanimous
Background
Background:
Claim for accident occurring February 3, 2010:
The worker filed a claim with the WCB for injuries to her upper and low back/side/right side/neck that occurred on February 3, 2010. The worker reported: It was at end of my shift - I was standing in front of an elevated box of garbage bags, I raised my hand at the elbow and began to reach maybe an inch or two and felt a twinge and stopped immediately. Felt the twinge in the side of my waist area. When I woke up in the morning it was hard to move. Called in sick the next day.
On February 5, 2010, the treating physician reported that the worker lifted a heavy garbage bag and suffered acute right-sided low back pain. The examination findings were right-sided lumbar muscle tenderness and full range of motion. The diagnosis outlined was mechanical low back pain. When next seen on February 22, 2010, the worker complained of neck, low back, shoulder, knee and right ankle pain and instability and sharp pain into the buttocks.
On March 3, 2010, the worker was advised that the WCB was unable to establish that an accident occurred based on the absence of a specific injury to account for the onset of her back pain.
On March 8, 2010, the WCB received information from a physiotherapist who reported that the worker had upper and lower back, neck and right arm pain. The worker was diagnosed with a strain and myofascial pain.
On March 26, 2010, the treating physician stated that he was amending his previous report of February 22, 2010. When he last saw the worker on March 23, 2010, the worker reported that she experienced back pain after reaching for a garbage bag rather than lifting the garbage bag as previously noted. On February 3, 2010, the worker shoveled snow from 6 doorways and mopped 4 flights of stairs. She then was reaching for a garbage bag when she developed acute right- sided middle and low back pain. The worker also developed symptoms consistent with left lateral epicondylitis.
On April 8, 2010, the WCB determined that no change could be made to the previous decision as the case manager was unable to find that the worker's back and other difficulties were due to a traumatic incident at work or to her work duties on February 3, 2010.
On August 13, 2010, Review Office accepted that the worker suffered a low back strain/sprain on February 3, 2010 and therefore her claim for compensation was acceptable. Review Office could not find a relationship between the worker's neck, shoulder, arm, leg, knee, buttock, right ankle and left elbow difficulties and the February 3, 2010 accident.
On September 2, 2010, the WCB approved additional physiotherapy treatment for the worker.
On October 6, 2010, the treating physiotherapist noted that the worker was seen on September 28, 2010 and was diagnosed with a strain/myofascial pain. It was felt that the worker required physiotherapy twice weekly for a period of six to eight weeks.
On November 3, 2010, a WCB medical advisor stated:
When the worker saw the physiotherapist on March 3, there were complaints of upper and lower back, neck, arm, and leg pain. This widespread pain would not be related to the CI [compensable injury] that was minor in nature. Only the back pain was said by Review Office as being related to the C/I [compensable injury]. From the therapist's notes, there were no clinical findings related to the low back. There was noted to be myofascial pain which would not have been related to this strain/sprain, so not caused by the workplace incident. There were no objective findings supportive of a low back strain, supporting that the effects of the C/I have resolved (and this would be within the time frame expected from the mild nature of the MOI).
On November 5, 2010, the treating physiotherapist was advised that the WCB was not authorizing treatment beyond November 4, 2010.
On November 5, 2010, the WCB advised the worker that her ongoing disability was not related to the workplace accident of February 3, 2010 and that no wage loss benefits would be covered beyond March 31, 2010.
On February 23, 2011, an occupational health physician reported as follows:
In my own examination, I found persistent sites of right lower back myofascial dysfunction are (sic) consistent with her symptoms and impairments under the circumstances of punitive stress and overuse when the injury event occurred...she would benefit from focused rehabilitation of the right quadratus muscle with local massage, stretching, muscle energy techniques to restore tone...If this first line approach is not effective or unavailable, it is reasonable to refer her to a physiatrist for consideration of trigger point injection therapy..."
In a June 28, 2011 report, the treating physician stated that the worker suffered from chronic muscular right-sided lumbar back pain exacerbated by activity. The worker's symptoms had been consistent since the injury she sustained in February 2010 while at work.
On September 13, 2011, Review Office determined that the worker was entitled to further benefits based on the finding that the worker suffered a right quadratus lumborum muscle strain from the February 2010 accident. Review Office stated: "...she is entitled to treatment for her quadratus lumborum strain. If this cannot be treated in isolation, the worker's non compensable myofascial pain, other 'aches and pains,' and lack of conditioning should also be addressed. It must be recognized the goal is not to completely recondition the worker. Information suggests she has not been in good physical condition for a significant number of years. Where at all possible, treatment such as physiotherapy must be received outside of the worker's regular workday."
Based on Review Office's decision, the worker was referred for a course of physiotherapy on March 16, 2012 for soft tissue treatment, education in back care and the provision of a home based exercise program.
On March 27, 2012, the treating physiotherapist stated that the worker had tenderness/myofascial restriction of the right paralumbars QL. The diagnosis was paralumbar right strain/myofascial pain. On March 29, 2012, the WCB case manager wrote the physiotherapist to advise that the WCB was authorizing up to 14 physiotherapy visits for the worker.
On June 14, 2012, the treating physiotherapist advised the WCB that the worker's condition was much improved and that 8 further treatments were needed to decrease restrictions and to increase the worker's core strength.
On July 4, 2012, the WCB determined that further physiotherapy coverage would not be authorized as there was no evidence that further in-clinic treatment was warranted and that a home program and/or self-pain management techniques would suffice.
Claim for accident occurring July 29, 2013:
On August 12, 2013, the worker filed a claim with the WCB for a right low back injury that occurred on July 29, 2013. The worker reported: I was moving a box from the mail room into the clerk area. The box was over 50 lbs. When I placed the box down, I had to place it down a little lower than where I had to lift it up from. I felt a pull in my back. I felt a sharp pain in my side. I believe it's a re-injury of a previous WCB claim.
A chiropractor's first report dated August 12, 2013 diagnosed the worker with hypertonic right quadratus lumborum.
On August 29, 2013, the worker was seen by an occupational health physician regarding the July 29, 2013 injury event. The consultant stated that the mechanism of injury was consistent with the clinical findings of a right quadratus lumborum strain and myofascial trigger point injections were suggested.
On September 20, 2013, a WCB medical advisor reviewed both claim files (2010 and 2013) and stated that the diagnosis offered by the physiatrist was myofascial back pain syndrome centered around the right quadrates lumborum complex. This diagnosis would not be related to the effects of the initial workplace injury. The incident carrying and placing a heavy object was felt to be consistent with low back strain typically predicted to recover over 6 to 8 weeks with appropriate therapies. Myofascial pain syndrome or chronic muscle/fascia irritation was of uncertain etiology and not necessarily related to the injury.
On September 3, 2013, the WCB accepted the worker's claim for a low back injury occurring on July 29, 2013 with the diagnosis of a lumbosacral strain. The worker underwent physiotherapy treatment with respect to the injury. On January 13, 2014, the WCB approved six additional physiotherapy sessions at a frequency of once per week for six weeks.
On November 27, 2013, the treating physiatrist stated:
"...has had longstanding back pain since a work-related incident in 2010. She presents with persistent tenderness over the right flank and along the top of her right iliac crest with extension across the lumbosacral junction to the left iliac crest. She has definite restriction freedom of motion in the region of the right flank with significant tenderness in the right quadratus lumborum and serratus posterior inferior with palpation. There is also evidence of irritability over the right iliolumbar ligament and multiple taut bands in the right gluteus medius. These findings along with the presence of spinal segmental sensitivity at T12, L3 and S1 support a diagnosis of myofascial pain...Pain from myofascial trigger points can easily remain for years creating physical and functional difficulty but showed no objective signs (labs, x-rays) of significant problems."
On February 24, 2014, a WCB medical advisor responded to questions posed by case management with respect to the worker's July 29 accident in conjunction with the worker's 2010 claim. The medical advisor indicated that based on the mechanism of injury, the worker sustained a right low back strain in an environment of chronic muscular and fascial irritation of uncertain etiology. The natural history of this condition was recovery in six to eight weeks. Any residual complaints were related to the worker's pre-existing condition.
In a decision dated February 27, 2014, the worker was advised that she was not entitled to further benefits in relation to the July 29, 2013 workplace injury as it was felt that the compensable strain injury had resolved and that her current symptoms were likely related to the pre-existing condition.
In September 2014, the Worker Advisor Office provided the WCB with medical reports from the treating physician dated August 31, 2014 and from the treating physiatrist dated September 3, 2014.
In a submission to Review Office dated October 29, 2014, the worker advisor submitted that the worker's chronic, right-sided low back and gluteus conditions, diagnosed as myofascial pain, was causally related to the February 3, 2010 workplace accident; and, that the July 29, 2013 workplace accident further aggravated the same condition. The worker was seeking WCB coverage for myofascial trigger point injections and physiotherapy treatment recommended to complement her injection therapy. A copy of this submission was sent to the employer for comment and the employer's submission to Review Office is dated December 19, 2014.
On January 15, 2015, Review Office determined that the diagnosis of myofascial pain syndrome was not related to the compensable accident and that the worker was not entitled to further physiotherapy treatments. Review Office referred to its previous decision of September 13, 2011 that the worker's claim was accepted for a low back strain/sprain based on the nature of the injury and the mechanism of injury. In the same decision it was concluded that the worker's myofascial pain syndrome was not causally related to the compensable accident but was co-occurring. Review Office saw no information to suggest otherwise or that there was a causal connection between the two. It was felt that the worker's ongoing need for further therapy was related to symptoms in keeping with myofascial pain syndrome and not the compensable accident. On March 4, 2015, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.
Reasons
Applicable Legislation and Policy:
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 two accepted claims for injuries arising out of a February 3, 2010 and a July 29, 2013 accident. She is seeking acceptance for a myofascial pain syndrome diagnosis as well as treatment for same and wage loss and medical aid benefits after February 27, 2014.
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 provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."
WCB Policy 44.120.10 Medical Aid sets out in part that "…medical aid attempts to minimize the impact of the worker's injury and to enhance an injured worker's recovery to the greatest extent possible."
Worker's Position:
The worker was represented by a worker advisor who made a presentation on her behalf. The worker answered questions asked by her representative and the panel. Their position was that the persistence of the injury is due in part by a delay in the provision of physiotherapy and the premature discontinuation of therapy once the claim had been accepted. These factors led to the development of myofascial pain in and around the quadratus lumborum musculature.
The worker advisor submitted that the diagnosis of myofascial pain remains localized to the right side of her lower back as supported by the examining occupational health physician and the treating physiatrist. With respect to the initial accident, although the physical movement preceding the acute onset might be characterized as minor, the literature provided to the panel supports that acute muscle strains can develop into myofascial pain.
In support of their position the worker advisor stated that the initial decision to deny the claim resulted in delayed physiotherapy treatment during the acute period. When the claim was ultimately accepted, physiotherapy treatment commenced in late September 2010 and ended on November 4, 2010. The worker then went without any treatment for a further six months until physiotherapy treatment was again approved in late March of 2012. Treatment continued until a WCB physiotherapy consultant determined that in-clinic treatment was not required. The worker advisor submitted that it was premature to discontinue physiotherapy treatment at that time.
The worker advisor submitted that the physiatrist's opinion dated March 4, 2015 was the strongest evidence to support the compensability of the worker's myofascial pain. He noted the comments made that he "only ever needled areas in or around her right lower back" and while his treatments have not cured her he commented that:
[the worker] has been undergoing myofascial trigger point needling directed at the prime areas, namely the right quadratus lumborum, gluteus medius and iliolumbar ligament…treatment of the right multifidis muscles between L1 and L5…The fact that she is responding to the release of tension in her right quadratus lumborum and gluteus medius muscles corroborates with the diagnosis of myofascial strain and myofascial pain.
The worker advisor noted on this issue, the evidence supports the connection between the worker's initial accident, the subsequent development of myofascial pain within, and adjacent to, her right lower back.
On the remaining issues of further treatment and benefits, the worker's position was that she has not recovered from the effects of either accident by February 27, 2014, and continued to require medical aid to treat her unresolved injury. In support of this position it was submitted that the occupational physician noted in his referral letter to the treating physiatrist that physiotherapy treatment should be incorporated into the recovery but not before undergoing needling treatment. The worker advisor noted that the worker has not had much opportunity to realize the potential benefits that might be gained from undergoing this concurrent treatment regimen.
The worker advisor submitted that the worker's family physician wrote to the WCB to recommend additional physiotherapy with acupuncture on February 27, 2014 and the treating physiatrist made the same recommendation on two occasions, September 3, 2014 and again on April 28, 2015. The worker advisor concluded that if the panel accepts the worker's appeal on the first issue, the second and third issue are reasonable and allowable.
Employer's Position:
The employer was represented by their Workers Compensation Claims Officer and an advocate who made submissions on the employer's behalf.
The representative submitted that their position is that there is no evidence that the myofascial pain developed as a result of the very minor mechanism of injury of raising her hand to reach an inch or two and stopping when she felt a twinge. Nor was there evidence of any cumulative injury. It was also indicated that there is no evidence that a delay in attending physiotherapy caused the syndrome as it had been diagnosed in March 2010 at the time of the first physiotherapy assessment.
The representative noted medical reports in 2010 show a history of improvement and by the April 19, 2014 visit, only minimal symptoms were reported. It was felt that by that time the worker's mild low back strain had resolved. The file notations show very minimal findings, mostly as reported by the worker, and all related to a very minor mechanism of injury. They felt the comments by the WCB medical consultant supported a diagnosis of a mild strain given the minor nature of the mechanism of injury.
It was further submitted that the myofascial pain was not caused by the mechanism of injury or the low back strain. It was noted that causes of myofascial pain syndrome are often unknown or multifactorial.
The representative submitted that the treating physiatrist provided an opinion that treatment involving trigger point needling provides potential relief and acts as a diagnostic procedure, and if no response is found, the probability that the soft tissue trigger points are causing ongoing difficulties is very low. The worker has been receiving this treatment since November 2013 and is scheduled for another, however; she still has symptoms and has not functionally improved. By the physiatrists own opinion, the trigger points associated with myofascial pain syndrome would therefore not be the cause of her complaints.
The employer representative submitted that their position is that while the worker may have been partially deconditioned prior to starting work in December 2009, at the start of her shift on February 3, her back was fine, with no evidence of any cumulative or overuse injury. It was also noted that the worker has received over a dozen needling treatments, physiotherapy and chiropractic care, all with no sustained benefit, which points to a lack of causation to the original 2010 incident, or the 2013 low back strain.
Analysis:
The WCB has determined that the diagnosis of myofascial pain syndrome is not related to the February 3, 2010 compensable accident and the worker is therefore not entitled to further physiotherapy treatment. The worker disputes these findings and is seeking wage loss and medical aid benefits. For the worker's appeal to succeed, the panel must find that the diagnosis of myofascial pain syndrome is causally related to the February 3, 2010 compensable injury and the worker is entitled to treatment and wage loss benefits. The panel is not able to make these findings.
Claim for accident occurring February 3, 2010:
Issue 1. Whether or not the worker's diagnosis of myofascial pain syndrome is causally related to the February 3, 2010 compensable accident
The panel asked the worker numerous questions regarding the mechanism of injury, the treatment she received, her response to treatment, her abilities and activities both before and after the injury. Weighing this information and the information on file contemporaneously to the compensable injury, the panel finds on a balance of probabilities that the diagnosis of myofascial pain syndrome is not related to the compensable injury that occurred on February 3, 2010.
The panel notes the initial descriptions of the mechanism of injury included:
- Worker Incident report, …I raised my hand at the elbow and began to reach maybe an inch or two and felt a twinge and stopped immediately.
- Adjudicator memo February 17, 2010, …had done quite a bit of heavy work that day, shoveled snow…mopped 4 flights of stairs…2 hours to shovel and 5 hours to mop. After the twinge she thought she better stop…she worked a long day and had aches and pains everywhere so she just emptied some lighter garbage…she went to the locker room and jokingly said she may have hurt her back to a co-worker [worker name].
- Supervisor email February 8, 2010, …was reaching with her right hand to a box of garbage bags around waist height to remove a new garbage bag…at the time she reports that she did not think very much of the pain but attributed it to normal work related fatigue…she did not think it was serious.
- Employer meeting February 11, 2010 regarding late reporting she was quoted as responding "I did not think it was an injury" and "I never did touch the bag" and "I do not believe I had a work place injury. Not a technical injury it was a twinge."
The panel notes these initial statements by the worker suggest a minor mechanism of injury that resulted in a minor injury as opposed to a significant injury. The Doctor's first report dated February 8, 2010 describes a different mechanism of injury - acute R side low back pain after lifting heavy garbage bag. Complaints - pain R sided lower back, worse with movement. Diagnosis mechanical low back pain. Findings - R sided lumbar muscle tenderness, gait normal, full ROM. The panel finds that the physician's findings suggest only a minor strain at best with no signs of radiculopathy.
The worker attended a physiotherapist on March 5, 2010 and the description of injury included feeling pain to right side chest and back and was unable to get out of bed the next day with pain to the C-spine, upper/lower back pain, aching, R>L shoulder/arm/leg pain. The diagnosis was strain/myofascial pain. The panel notes this diagnosis was offered 31 days after the reported injury. The panel also notes the worker's description of diffuse pains in areas of her anatomy that had not been reported prior to this date.
The worker's evidence was she had no prior back problems but had been off work for an extended period of multiple years. Prior to returning to work in December 2009 she stated:
I would spend hours at [location] off-leash park with my dog and I walked, and I walked, and I probably lost about 150 pounds in that three years. And going everyday to the park, sometimes twice a day, and walking with other people for hours. So, I just walked with my dog all the time…I could walk for hours, I could do my gardening, I could do my mowing, I could do all kinds of stuff, but I didn't do, you know, any exercise, specific types of exercise or anything like that, but I was active.
In respect to gardening activities at home she responded:
I have a little area that I have perennials in there…I do one to six hanging baskets…going to do some plants on the side, in my back yard…I have a push mower…the front is only the size of this table…just a little patch…my back yard is 25 by 10…takes 20 minutes to mow.
The panel notes the worker had a level of fitness that would not impact her abilities for a physical job when she returned to work in December 2009. Her duties after that date were unfamiliar to her and did result in her reports of being tired. The panel does not accept that the duties the worker performed from December 2009 to February 3, 2010 were sufficient to cause a cumulative injury on February 3, 2010.
It is the panel's understanding that myofascial pain syndrome results from an acute and significant muscular injury that, after a reasonable and expected recovery period, pain persists and becomes chronic.
The panel notes physiotherapy treatment was authorized by Review Office in the September 13, 2011 decision. A WCB physiotherapy consultant opined on March 16, 2012 that a course of physiotherapy with acupuncture should lead to improvement in function.
The panel reviewed the physiotherapist's report dated March 27, 2012 which noted findings of decreased mobility, decreased core strength and stability and increased low back pain with resisted movements. The diagnosis offered was paralumbar (R) strain/myofascial pain. In a progress report dated June 14, 2012 it was noted the worker reported stiffness and achy feeling after a day of work or physical activity. Tenderness was noted with full range of motion, pain with rotation and side flexion, full lower limb range of motion and strength. A request was made for extension of treatment.
In response to the request for an extension of physiotherapy treatment, a WCB physiotherapy consultant opined that there was no evidence to support that further in-clinic treatment was warranted. A home program for self-pain management techniques should suffice. Based on the reported findings by the physiotherapist on June 14, 2012, the panel accepts the opinion of the WCB physiotherapy consultant.
Based on the foregoing, the panel finds that the worker's myofascial pain syndrome is not causally related to the workplace injury.
The worker's appeal on this issue is dismissed.
Issue 2. Whether or not the worker is entitled to further physiotherapy treatment.
For the worker's appeal to be accepted on this issue the panel must find that she required physiotherapy treatment in relation to her low back strain. The panel was unable to make this finding. The panel notes our decision and findings on the first issue and therefore any treatment related to the diagnosis of myofascial pain is not related to the compensable injury occurring February 3, 2010.
The worker's appeal on this issue is dismissed.
Claim for accident occurring July 29, 2013:
Issue 3. Whether or not the worker is entitled to benefits after February 27, 2014.
For the worker's appeal to be accepted on this issue the panel must find that she incurred a loss of earning capacity and required medical aid in relation to her low back strain occurring July 29, 2013. After review of the file and hearing evidence, the panel is unable to make this finding.
The panel notes the worker had returned to work in a clerk capacity and part of her duties involved receipt of mail and parcels. The July 29, 2013 mechanism of injury noted she was moving a box from the mailroom and felt a pull in her lower back and a sharp pain in her right side when she put the box down. After a visit to her treating chiropractor a diagnosis of lumbo sacral and sacroiliac strain was made.
On September 3, 2013 the case manger contacted the chiropractor regarding the worker's progress. It was noted that the worker had missed her last treatment but was doing fairly well and the chiropractor noted no extension of treatment would be required.
The panel notes that the worker was examined by an occupational health physician on August 29, 2013 and his assessment identified the presence of taut bands and myofascial trigger point activity that he first noted in 2011. He referred the worker to a treating physiatrist for consideration of myofascial trigger point injections. He also opined that physiotherapy would be a useful part of recovery.
The panel notes the claim was accepted based on a diagnosis of lumbosacral strain and physiotherapy was approved for one full course. In addition, in January 2014, a 6 week extension of treatment was authorized.
The panel accepts the opinion of the WCB medical consultant who indicated on February 24, 2014, that the worker sustained a right low back strain in the environment of chronic muscular and fascial irritation of unknown etiology…any residual complaints are related to the worker's pre-existing condition.
Given the panel's findings on issues 1 and 2, that the diagnosis of myofascial pain syndrome and treatment for same is not causally related to the February 3, 2010 compensable accident, the panel finds based on the totality of the evidence and on a balance of probabilities, the worker is not entitled to benefits beyond February 27, 2014.
The worker's appeal on this issue is dismissed.
Panel Members
D. Kells, Presiding OfficerR. Koslowsky, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
P. Walker - Commissioner
Signed at Winnipeg this 14th day of July, 2015