The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") in relation to her compensation claim. A hearing commenced on July 14, 2016 to consider the worker's appeals, and reconvened on November 10, 2016.

Issue

Whether or not the worker's left leg dystonia is a consequence of the January 3, 2011 accident; and

Whether or not the worker is entitled to wage loss benefits in relation to her concurrent employment after August 21, 2011.

Decision

That the worker's left leg dystonia is not a consequence of the January 3, 2011 accident; and

That the worker is not entitled to wage loss benefits in relation to her concurrent employment after August 21, 2011.

Background

On January 4, 2011, the worker filed a claim with the WCB for an injury to her low back that occurred on January 3, 2011, while attempting to lift a stretcher. The worker advised the WCB that she was also employed with a second employer at the time of the accident, and was missing time from that employment due to her back injury. The claim for compensation was accepted and benefits were paid to the worker based on the diagnosis of a compression fracture of the L2 vertebrae.

On August 15, 2011, the worker was advised by Rehabilitation and Compensation Services that her claim file had been reviewed by several WCB medical advisors in relation to a recent functional capacity evaluation and it was determined that her current medical restrictions were no lifting or carrying over 40 pounds. As such, it was determined that the worker was capable of returning to her previous employment duties with her concurrent employer. The worker was also advised that her case would again be reviewed in December 2011 to determine whether she was capable of returning to her full pre-accident employment.

On September 7, 2011, a WCB chiropractic advisor confirmed that a six week trial of chiropractic therapy for the worker's low back discomfort would be appropriate.

File records indicate that the worker did not return to work with her concurrent employer as she did not feel she could work a full day because she was unable to sit or stand for extended periods of time. On November 8, 2011, a WCB medical advisor reviewed the file and stated:

The September 30, 2011 report from the consulting Sport Medicine Physician suggests a differential diagnosis of "cord vs. root compression" to account for [the worker's] reported low back symptoms with radiation to the left lower limb. The November 1, 2011 LS spine MRI shows improvement compared to the March 12, 2011 study in that the bone marrow edema (a sign of acuity) which was present in relation to [the worker's] L2 compression fracture has resolved. There is no cord and no nerve root compression seen, and as such the proposed diagnoses of cord vs. nerve root compression are not substantiated.

By letter dated November 8, 2011, the worker was advised that there would be no change to the August 15, 2011 decision based on the noted improvement in the MRI finding.

On December 6, 2011, the WCB medical advisor opined that the worker's current presentation was not accounted for in relation to the January 3, 2011 compensable injury/L2 compression fracture.

In a medical opinion dated December 12, 2011, the WCB medical advisor stated:

[The worker] experienced a compression fracture at L2 in relation to a January 3, 2011 lifting incident as part of her job duties…To date, [the worker's] presentation/progress has been atypical considering the natural history of lumbar compression fractures of the order of 20% anterior wedge progression. As such any recommendation for workplace restrictions is not pathologically based.

In light of [the worker's] progress to date, it is unlikely that she will tolerate duties that include heavy lifting and frequent bending…

There is no pathology that has been defined to substantiate that [the worker] would be unable to tolerate full duties in her [concurrent employment].

In a further medical opinion dated December 12, 2011, the WCB medical advisor stated:

…an L2 compression fracture can result, in a minority of persons, in long term symptoms. While [the worker's] currently reported low back symptoms are not in keeping with expected norms, it is likely that in her case, a combination of structural pathology resulting from the January 11, 2011 CI related L2 compression fracture, and non-structural factors are playing a role in her current presentation.

Workplace restriction is no lifting of greater than 40 lbs for occasional lift. As [the worker] is now 11 months post her January 11, 2011 CI, it is likely that she is approaching MMI [maximum medical improvement] in relation to her reported low back pain. The above restriction can be considered permanent at one year post CI.

On December 22, 2011, the worker appealed a number of decisions made on her claim to Review Office.

On February 27, 2012, Review Office confirmed the August 15, 2011 decision. Review Office was unable to find medical evidence to support the worker's contention that she was unfit for the office duties with her concurrent employment. Review Office noted that it was almost eight months post-trauma when the decision was made by the case manager and thus the L2 fracture had a significant amount of time to heal. If the worker was unable to meet the requirements of the office work with the concurrent employer, it was not due to any trauma to the L2 level of her lumbar spine.

In June 2012, the accident employer offered the worker a permanent position working in a scheduling department that would allow her to stand or shift positions as required. As the worker did not participate in the return to work program and the duties were considered to be within her compensable restrictions, the WCB reduced the worker's wage loss benefits.

On June 30, 2014, the treating physician noted that the worker wanted her compensation claim reviewed as she continued to suffer significant disability since her work related injury in January 2011. The physician reported that the worker had definite signs of neurologic impairment with dystonia involving her left leg. There were indications that the cause of her protracted back pain and neurologic impairment was consistent with a spinal injury associated with the L2 compression fracture sustained on January 3, 2011. The physician further stated: "There has been no other cause demonstrated for her definitive neurologic signs and it has been indicated to me this type of spinal injury can occur with compression fractures."

In a memo to file dated August 19, 2014, the WCB case manager documented information she obtained from the worker. The worker indicated that she still had symptoms in her low back and left leg and the pain was ongoing. The worker noted that she attempted one return to work for six weeks on modified duties, but could not complete the duties. The worker indicated that she did not report her ongoing issues to the WCB as the WCB was not assisting her.

On November 14, 2014, a WCB sports medicine advisor reviewed the file information and stated:

The previous medical opinion on Dec. 12/11 was that [the worker's] low back pain was due to a combination of the workplace related L2 compression fracture as well as non-structural (i.e. non-workplace) related factors. Permanent restrictions were provided for [the worker's] low back. The updated medical information does not change the previous medical opinion regarding the low back. No changes to the restrictions outlined on file are currently recommended.

A Feb. 3/14 physical medicine consult report indicated a possible diagnosis of radicular back pain in light of an objective finding of positive left lumbar dural tension tests. There was no evidence of a myotomal, dermatomal, or reflex deficit on this examination. [The worker] was previously examined at the WCB on Mar. 29/11, where lower extremity reported symptoms and objective findings were noted to be pathoanatomically inconsistent with an L2 compression fracture. A neuroanatomical cause for the reported lower extremity pain was not found on MRI reporting in 2011 in relation to the L2 compression fracture. There was also no electrodiagnostic evidence of a neurological lesion to account for the reported leg symptoms in relation to the L2 compression fracture (July 3/12 EMG/NCS report). On balance, the reported lower extremity symptoms do not medically relate to the L2 compression fracture.

With regards to the reported muscle cramping and foot dystonia, a diagnosis for same is not established. The cause of dystonia is often idiopathic, however it can be associated with a myriad (sic) other disorders such as Parkinson's disease, brain injuries, infections, etc. In this case, a probable medical relationship between the foot dystonia and an L2 compression fracture (which did not compromise the surrounding neural structures per MRI reporting), is not established in pathoanatomical terms.

In a decision dated November 18, 2014, the worker was advised by Compensation Services that her current lower extremity difficulties diagnosed as dystonia were not accounted for in relation to the January 3, 2011 compensable injury.

On June 8 and June 11, 2015, Compensation Services wrote the worker to advise that the new medical reports she submitted had been reviewed and no change would be made to the WCB decision of November 18, 2014.

On September 18, 2015, a worker advisor wrote Review Office submitting that there was clinical evidence on file to support a relationship between the worker's left foot dystonia and the January 3, 2011 compensable injury.

On October 13, 2015, Review Office confirmed the decision that the worker's left leg dystonia was not related to the workplace injury. Review Office acknowledged the worker had left leg difficulties and that a physical medicine doctor indicated in a report dated February 26, 2015 that it was related to the workplace accident. However, Review Office indicated that it preferred and accepted the WCB sports medicine advisor's opinion of November 14, 2014.

On October 20, 2015, the worker appealed Review Office's decisions dated February 27, 2012 and October 13, 2015 to the Appeal Commission. A hearing was arranged to consider the worker's appeal but the hearing was cancelled at the request of the worker's legal representative.

On March 7, 2016, the worker's legal representative advised that they were ready to proceed to an oral hearing and a hearing commenced on July 14, 2016. The July 14, 2016 hearing was adjourned, and reconvened on November 10, 2016.

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 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.

Under subsection 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 39(2) of the Act 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 was represented by legal counsel who made an oral submission on the worker's claim. Counsel submitted that the key issue on the appeal was whether the worker's dystonia was related to the work-related incident, noting that it if was, then benefits would flow to the worker.

The worker called as a witness her treating physiatrist. In response to questions from the worker's counsel, the physiatrist stated that she first met the worker in 2014 and had been treating her with respect to her left foot dystonia since then. She said that the worker was actually diagnosed with dystonia by the treating neurologist, who referred the worker to the physiatrist primarily for treatment. The physiatrist noted that she agreed with that diagnosis.

The physiatrist stated that while she did not know the worker at the time of her work-related accident, she was aware of the history of that accident from the records she had been given and the history she received, and that in her opinion, the dystonia was related to that accident. She noted that the worker sustained an L2 fracture, that she experienced numbness in her legs and foot shortly after that, and dystonia in the left side within a couple of weeks.

The physiatrist said she had several cases where spinal injuries had caused dystonia. She noted that the literature also indicated that dystonia can be induced by trauma, and provided copies of two articles which she said supported that comment. The physiatrist stated that in the worker's case, her dystonia was not only very temporally related to the accident, but her family physician had also confirmed that she had no problems prior to the injury.

The physiatrist also responded to questions from the panel concerning the nature, treatment and management of dystonia and the worker's symptoms and condition. The physiatrist stated that the initial onset of symptoms is variable. Symptoms of dystonia can start coming on within a week or several weeks or months, then tend to progress over time. In the worker's case, she had numbness from the injury. With respect to the file information she had received, the physiatrist said that she had received letters from the treating neurologist and the family physician. She had not received any imaging, other than an MRI from June 2014.

The worker also answered questions from her counsel and from the panel.

The worker's legal counsel further referred to a letter from the treating neurologist, dated November 7, 2016, which stated:

I have followed [the worker] since August 9, 2013 for her diagnosis of left foot dystonia. … Post-traumatic dystonia has been reported but is poorly understood. There is a lack of clear consensus on post-traumatic dystonia amongst experts in the field of movement disorder.

However, upon reflecting on [the worker's] particular case, it is my opinion that her foot symptoms are probably related to her work-place injury. The factors that support this view are that her symptoms started in the immediate aftermath of this injury and that no other plausible explanation to account for her symptoms has been discovered.

Counsel also referred to a letter from the worker's family physician dated November 5, 2016, written in support of the claim in which, he submitted, the physician had made clear that in his opinion the worker's injury caused the worker's problems.

In conclusion, counsel submitted that it was clear from the medical evidence that trauma can cause dystonia. He submitted that in the worker's case, it came on very shortly after trauma, and that all the doctors who treated the worker were convinced that the trauma caused her to have this dystonia. It was therefore submitted that the dystonia was due to the work-related accident, and the worker should continue to be paid her benefits.

Employer's Position

The employer did not participate in the appeal.

Analysis

Issue 1. Whether or not the worker's left leg dystonia is a consequence of the January 3, 2011 accident.

For the appeal on this issue to be accepted, the panel must find that the worker's left leg dystonia is causally related to the January 3, 2011 accident. The panel is unable to make that finding. Based on our review of all of the evidence before us, both on file and at the hearing, the panel finds, on a balance of probabilities, that the worker's dystonia is not causally related to the January 3, 2011 workplace accident.

Based on the evidence before us, and on a balance of probabilities, the panel finds that the worker's dystonia was not present in 2011. The panel notes that a review of the medical information on file shows that symptoms of dystonia in the worker's left foot first appeared in a March 5, 2012 report from the family physician which refers to the worker experiencing numbness in her left leg. The worker was referred to a neurologist who noted in a report sent June 15, 2012, that the worker had been complaining of numbness affecting all toes of the left foot and numbness affecting the left sole, and her left toes not being able to flex downwards.

The first clinical evidence of dystonia was noted in a letter from a consulting physiatrist dated October 26, 2012 (more than one and a half years after the accident), where it was stated that "there did appear to be some focal weakness of left ankle dorsiflexion and great toe extension. Sensation was altered (paresthesia with testing) over the dorsum of the left foot." It was subsequently stated in the report of a nerve conduction study done January 7, 2013 that the study was limited by the foot posture and muscle contraction, and the worker was being referred to a neurologist at the movement disorder clinic due to the dystonia noted.

The worker relied on the evidence of the treating physiatrist in support of her position that there was a causal relationship between her dystonia and the January 3, 2011 workplace accident. The panel is unable, however, to accord much weight to the physiatrist's evidence with respect to this relationship.

In this regard, the panel notes, among other things, that:

• The physiatrist first saw the worker on February 2, 2014, more than three years after the accident;

•The physiatrist based her opinion on the very limited amount of information which was reported to her. She acknowledged that she did not receive any imaging results, other than a 2014 MRI;

• The physiatrist stated in her evidence that it was the treating neurologist who diagnosed the dystonia, and the worker had been referred to her primarily to provide treatment for that condition;

• The physiatrist's opinion was based on her understanding that the worker had experienced symptoms within the first couple of weeks after the accident and that the dystonia was very temporally related to the accident which, as indicated above, is not consistent with the medical evidence on file.

The worker also relied on the November 7, 2016 letter from her treating neurologist, but the panel is similarly unable to accord much weight to that letter. The panel again notes that the neurologist first saw the worker on August 9, 2013, more than two and a half years after the accident, and relies heavily in his opinion on his understanding that the worker's symptoms started in the "immediate aftermath of this injury".

The panel places significant weight on the November 14, 2014 opinion of the WCB sports medicine consultant, who reviewed the file and opined that a probable medical relationship between the worker's foot dystonia and an L2 compression fracture was not established in pathoanatomical terms.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's left leg dystonia is not causally related to the January 3, 2011 workplace accident and is not a consequence of that accident.

The worker's appeal on this issue is dismissed.

Issue 2.  Whether r not the worker is entitled to wage loss benefits in relation to her concurrent employment after August 21, 2011.

For the appeal on this issue to be accepted, the panel must find that the worker continued to suffer a loss of earning capacity in relation to her concurrent employment after August 21, 2011 as a result of the January 3, 2011 accident.  The panel is unable to make that finding.  Based on our review of all the evidence, the panel finds, on a balance of probabilities, that by August 21, 2011 the worker was capable of returning to her concurrent employment duties.

In arriving at that conclusion, the panel placed weight on the following:

•The February 5, 2011 findings of a consulting orthopedic surgeon were that the worker had a very minor fracture at the L2 level and a virtually 100% recovery potential, and would probably be able to return to work by April 2011;

•Following a call-in examination of the worker on March 29, 2011, the WCB medical advisor determined that the worker was "not totally disabled" and set current restrictions of no prolonged sitting or standing without the ability to change position, no lifting greater than 20 pounds, no walking on uneven surfaces, no prolonged static forward flexion and no frequent bending, twisting, or crouching;

•In a May 12, 2011 report, the consulting orthopedic surgeon stated that the worker was not responding the way he would expect with an L2 fracture, and was certainly not in need of surgery;

•In a June 6, 2011 report, the consulting orthopedic surgeon stated that the worker had many Waddell signs, had complaints of severe pain which was out of context and claimed she could not pull down more than 20 pounds, which was very light.  The surgeon again noted that there was absolutely no indication for surgery;

•A report from the WCB medical advisor dated June 20, 2011 noted that there was currently no patho-anatomic correlate to account for the severity of the worker's reported symptoms, upon which to base workplace restrictions, and no pathologic diagnosis to account for her inability to perform sedentary duties with the provision for altering position as required, avoiding prolonged/repetitive forward flexion and avoiding walking over uneven surfaces;

•In a report dated August 12, 2011, the WCB medical advisor stated that the file had been reviewed and discussed with the WCB's senior medical advisor and a WCB orthopedic consultant, that the current restriction of no lift greater than 40 pounds was based on expected recovery norms in relation to L2 vertebral compression fractures, and that the worker's currently reported symptoms were not currently accounted for in relation to the January 3, 2011 L2 compression fracture;

•The panel has previously found that dystonia was not present in August 2011;

•Information on file indicates that the concurrent employer confirmed on August 12, 2011 that a person with a 40 pound lifting restriction could perform the employment duties;

•While the worker attempted to return to work for the employer in a sedentary role, the worker made no attempt to return to work with the concurrent employer;

•The work with the concurrent employer consisted for the most part of relatively light duties;

•The worker did not say she was not capable of doing that work;

•In a December 12, 2011 report, the WCB medical advisor stated that there was no pathology that had been defined to substantiate that the worker would be unable to tolerate full duties in her position with the concurrent employer.

Based on the foregoing, and on a balance of probabilities, the panel finds that the worker did not suffer a loss of earning capacity in relation to her concurrent employment after August 21, 2011 as a result of the January 3, 2011 workplace accident.

The panel therefore finds that the worker is not entitled to wage loss benefits in relation to her concurrent employment after August 21, 2011.

The worker's appeal on this issue is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
C. Devlin, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of January, 2017