The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she had recovered from the effects of her compensable injury and was not entitled to benefits beyond July 31, 2009. A hearing was held on February 8, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits beyond July 31, 2009.

Decision

That the worker is not entitled to wage loss benefits beyond July 31, 2009.

Decision: Unanimous

Background

The worker filed a claim with the WCB for pain she experienced in her low back and abdomen with the accident date of April 18, 2008. The worker attributed her pain to lifting a pail weighing approximately 50 pounds. She lifted the pail from the ground up.

Information submitted by the accident employer was that the worker started complaining of stomach problems on April 9, 2008. The worker continued working, and on April 18, 2008, she agreed to see a doctor as she was still complaining of pain. The employer said they did not know what the injury was or when it happened.

Following verification of the worker's job duties on April 18 and confirmation by the employer, the WCB accepted the worker's claim for compensation based on the initial diagnosis of mechanical back pain.

Subsequent medical reports showed that the worker underwent a CT scan on June 13, 2008 which showed a small right paracentral disc protrusion at L5-S1.

In a report dated January 19, 2008 (sic), a physiatrist reported that the CT scan findings showed a right paracentral disc protrusion at L5-S1 but no foraminal stenosis or nerve root entrapment was noted. The physiatrist thought the worker had muscular pain in the gluteus maximus and the piriformis.

On January 20, 2009, the worker was seen at the WCB's office for a call-in assessment. The medical advisor outlined his examination findings and stated:

Significant pain behaviour during today's examination made the examination difficult. Information on the file indicated the possibility of radiculopathy. Today's examination did not support radiculopathy although the examination was obscured by pain behaviour. My examination did not reveal evidence of a piriformis syndrome. In addition to possible underlying radiculopathy, there is a considerable amount of pain behaviour overlying this.

The medical advisor found no medical reason to preclude the worker from returning to work on a graduated basis.

The WCB contacted the employer to arrange a return to work program, but the employer was unable to accommodate the worker with modified duties. The WCB subsequently arranged for the worker to attend a work hardening program for the period June 22, 2009 to July 17, 2009.

In a decision dated July 21, 2009, the WCB case manager stated:

During the program you reported difficulties on more than one occasion and ended your participation a day before it was complete. I requested a report from the facility and although they noted you did not fully participate in the program as expected, the medical still supported that you had fully recovered and that you were able to return to your full job duties effective July 20, 2009.

I spoke to your employer following the end of your program...We arranged for you to return to your full job duties at 4 hours per day starting July 20, 2009, then 6 hours per day starting July 27, 2009 then full hours as of August 3, 2009.

I spoke to you on July 17, 2009 and you stated that you would not be returning to work on July 20, 2009.

As the above medical supports your ability to return to your full duties and hours and a graduated return to work was arranged well within your abilities, I am unable to consider further wage loss or medical expenses beyond August 3, 2009, the day you were scheduled to return to your full duties and hours.

In August 2009, the worker appealed the above decision to Review Office.

On October 5, 2009, Review Office determined that there was no entitlement to wage loss benefits beyond July 31, 2009. Review Office stated, in part, that a disc protrusion with no nerve root compression is not necessarily a condition that would preclude the worker from returning to work. It accepted the January 2009 opinion of the physiatrist which stated the worker had muscular pain of the gluteus maximus and the piriformis.

Review Office concluded that the worker's subjective complaints of pain were in excess of the clinical findings on file. There was insufficient medical evidence to support that the difficulties the worker had during the reconditioning program (swelling in both legs and chest pains) were causally related to the compensable injury. Review Office was of the view that the evidence on file did not support a causal relationship between the worker's current difficulties and the compensable injury of April 18, 2008.

On October 16, 2013, the worker submitted an appeal. Included with the appeal were the results of an MRI of the lumbar spine dated January 21, 2013 which had been compared to the CT of June 2008. The MRI findings were as follows:

Small to moderate central disc protrusion L5-S1 contacting the S1 nerve roots bilaterally with mild to moderate central spinal stenosis. Clinical correlation for S1 radiculopathy would be helpful.

Arrangements were made for an oral hearing to take place at the Appeal Commission in January 2014. On December 19, 2013, the worker telephoned the Appeal Commission and asked that the January 2014 hearing be cancelled.

In a later report to Review Office dated February 26, 2014, the treating physician stated: "In summary this lady's quality of life is significantly impaired both from back pain and also depression, possibly posttraumatic stress symptoms, all of which appear to originate from her original injury."

On July 14, 2014, the worker underwent another MRI of the lumbar spine which was compared to the MRI of January 2013. The results showed "Small L5-S1 disc protrusion which is decreased in size from January 2013. No significant central stenosis."

On July 13, 2015, the worker requested Review Office to reconsider its previous decision dated October 5, 2009.

On August 14, 2015, Review Office determined that there was no entitlement to benefits beyond July 31, 2009. Review Office said the 2013 and 2014 MRI reports supported the WCB medical advisor's January 2009 opinion that the evidence did not support a radiculopathy. Review Office felt the worker's complaints were consistently out of proportion to the diagnostic test results. There was no evidence to support a correlation between the worker's complaints of frequent paralysis due to numbness in her lower back, legs, arms and spine and the 2008 compensable injury. The MRI reports showed no evidence of nerve root compression and the 2014 MRI report noted the small L5-S1 disc protrusion had decreased in size from January 2013. In September 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was held on February 8, 2016.

Following the hearing, the appeal panel met to discuss the case and requested additional medical information from two of the worker's treating physicians. On March 29, 2016, the worker was provided with a copy of the medical reports that were obtained by the panel, for comment. On April 13, 2016, the panel met further to discuss the case and to render a decision on the issue under appeal.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.

Subsection 4(1) of the Act provides that 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) provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.

Worker's Position

The worker attended the hearing with her husband, who assisted her with her presentation. The worker made her presentation and responded to questions from the panel with the services of an interpreter.

The worker's position was that her injury has never healed; it has only become worse over time. In response to questions from the panel, the worker described what occurred at the time of the injury, and the symptoms and pain she has experienced over the years. She said that the pain

which she goes through every day is unbearable. She struggles just to get out of bed every morning. Walking, sitting and moving around are so hard to do with the pain. It is never-ending, and she feels physically and emotionally overwhelmed. Her husband described her as being a totally different person since her injury. She went from being very outgoing to being stuck at home. He noted that everything is such a struggle for her.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether the worker is entitled to wage loss benefits beyond July 31, 2009. For the worker's appeal to be successful, the panel must find that the worker sustained a loss of earning capacity after July 31, 2009 as a result of her April 18, 2008 workplace injury. The panel is unable to make that finding.

The worker has complained of a number of different symptoms, and a variety of different diagnoses have been referred to and explored over the course of the file. The panel carefully reviewed the information on file and the information which was provided at the hearing with respect to these symptoms and diagnoses. The original diagnosis which was accepted as compensable was mechanical back pain.

The panel notes that the CT scan performed in June 2008 showed evidence of a small disc protrusion at L5-S1. Later, a progress report from the treating physician dated December 10, 2008 and a discharge report from the treating physiotherapist dated December 31, 2008 both refer to the worker complaining of pain radiating down her leg or radiculopathy. The worker acknowledged in her evidence at the hearing that it was in December 2008 that she first experienced nerve problems in her toes. This was 8 months after the worker's injury.

The panel further notes that findings of radiculopathy could not be correlated by the doctors doing clinical examinations which included neurological tests. Thus, for example, the WCB medical advisor concluded, following the call-in examination on January 20, 2009, that the physical examination did not support radiculopathy.

Based on the evidence, and given that the worker was not complaining of problems with pain radiating down the legs into the toes until December 2008 and that nothing in the file suggests there was a nerve problem at the time of the injury, the panel is unable to tie complaints of radiculopathy back to the original compensable injury.

The panel notes that more recently, in a letter dated September 12, 2014, the treating physician stated that the recent MRI had confirmed that she had a small but symptomatic L5/S1 disc that was causing radiculopathy. The treating physician wrote that the worker had had an epidural steroid injection which caused some improvement and that it was possible there would be incremental improvement with further injections.

After the hearing, the panel sought further information from the physician who administered these injections. In his report dated March 21, 2016, the physician reported that the worker was treated with an epidural steroid injection at the L3-L4 and L4-L5 interspace during each injection on April 14, 2015 and September 1, 2015, and said at the time that she had some symptomatic improvement from the injections. In a report from the treating physician dated February 19, 2016, which was also provided after the hearing in response to a request from the panel, the treating physician commented that while these injections were initially felt to be helpful, they were subsequently less so, and they had not continued this treatment. This was consistent with the worker's evidence at the hearing that she had stopped the injections after her last visit because they did not help. The panel finds that the recent treatment was aimed at a potential disc problem or disc dessication, and was not related to the compensable injury.

The panel has also assessed other proposed diagnoses, to determine if they are related to the compensable injury. In January 2009, the physiatrist suggested that the worker had muscular back pain which was probably gluteus maximus and the piriformis, and recommended cortisone and xylocaine injections to that area. Injections in the piriformis were subsequently performed by the treating physician, but were unsuccessful. This was confirmed by the worker at the hearing, who also acknowledged that the problem was not in the buttocks. The panel finds that this is consistent with the WCB medical advisor's examination findings, on January 20, 2009, where there was no evidence on examination of a piriformis syndrome.

Regarding stenosis, the panel notes that the CT scan of June 13, 2008 showed that there was no evidence of central spinal stenosis or foraminal stenosis. Subsequently, an MRI of the lumbar spine from January 21, 2013 identified small to moderate central disc protrusion L5-S1 contacting the S1 nerve roots bilaterally with mild to moderate central spinal stenosis. Again, given that it was expressly noted in 2008 that these was no evidence of stenosis, the panel is unable to tie that finding of stenosis back to the injury that occurred on April 18, 2008. The panel further notes that the July 14, 2014 MRI disclosed that the disc protrusion had decreased in size from 2013 and that there was no significant central stenosis.

Regarding the current status of the worker's mechanical back pain, the panel notes that the treating physician's report, dated February 16, 2016 provided in his response to the panel's request for further information, referred to degenerative disc disease, stating:

My diagnosis is mechanical low back pain. She does have some degenerative disc disease…

All the specialists who have seen [the worker] feel that this is mechanical low back pain and have all suggested physical methods to improve her symptoms, namely physiotherapy, reconditioning, etcetera.

In my opinion, [the worker's] diagnosis is indeed mechanical low back pain. I have no reason to doubt the opinion of this many specialists.

The panel finds that a diagnosis of degenerative disc disease and associated mechanical back pain is consistent with the 2013 and 2014 MRIs, which show, among other things, "disc dessication." The panel is unable to find that degenerative disc disease and problems arising from degenerative disc disease are related to the compensable injury or that such problems were caused, aggravated or enhanced by the compensable injury.

As to the worker's entitlement to wage loss benefits after July 31, 2009, the panel places considerable weight on the opinion of the WCB medical advisor who reviewed the file and assessed the worker at a call-in examination on January 20, 2009, and found that there was no medical reason to preclude the worker from returning to work on a graduated basis. When the employer was unable to accommodate the worker with modified duties, the WCB arranged for her to attend a work hardening program. The panel also places significant weight on the opinion of the physiatrist who, at the conclusion of the work hardening program in July 2009, found that the worker had recovered from her work-related injuries to the extent that she was fit for an immediate, unmodified return to pre-injury employment. Although modified duties were offered, with an ultimate return to full hours and duties by July 31, 2009, the worker advised that she would not be returning and did not return to work. The panel finds that the graduated return to work program was appropriate in terms of what we have accepted as her compensable injury and her noted recovery, and that the worker was able to participate in the graduated return to work program leading to full hours and duties by July 31, 2009, at which time her loss of earning capacity would have ended.

The panel acknowledges that the worker has had significant ongoing pain issues since July 31, 2009. Based on our analysis, however, we are unable to find, on a balance of probabilities, that her pain and ongoing difficulties are causally related to her April 18, 2008 workplace accident and compensable injury.

In conclusion, having carefully considered all of the information on file, the information provided at the hearing and the information subsequently submitted at the panel's request, the panel finds, on a balance of probabilities, that the worker had recovered from her compensable injury by July 31, 2009 and is not entitled to wage loss benefits beyond that date.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer

Signed at Winnipeg this 10th day of June, 2016