The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to further benefits in relation to the April 21, 2015 accident. A hearing was held on February 28, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to the April 21, 2015 accident.

Decision

That the worker is not entitled to further benefits in relation to the April 21, 2015 accident.

Background

On May 12, 2015, the worker reported to the WCB that he injured his left leg/hip in an incident at work on April 21, 2015. He described the incident on the Worker Incident Report as:

I was cleaning the bedroom for the client. In order to clean the bedroom, the procedure is to move furniture like bed and closets. At that time, I was cleaning underneath the bed and to do this, I have to lift the bed frame or base. I lifted the bed frame, and as soon as I did that, I felt immediate sharp pain on my upper leg on my hip area.

I continued to work and finished the shift.

On April 22, 2015, the worker attended a walk-in clinic where he reported lower back pain on his left side and that it was hard to move or bend. The walk-in clinic physician did not provide a diagnosis, but noted that the worker had a tender lumbar paravertebral muscle on the left side, a positive straight leg raise test, and reduced range of motion.

On April 27, 2015, the worker saw his family physician, who diagnosed "pain on right buttock, most likely is a sprain of the piriformis muscle," and recommended physiotherapy and that the worker be off work. The worker was seen by a physiotherapist for an initial assessment on April 29, 2015. The physiotherapist noted mild edema along the posterior left hip and buttock area and increased tone with muscle spasm when activating the muscles along the gluteal and piriformis area, and diagnosed the worker with a left piriformis and gluteal strain.

The worker's claim was accepted by the WCB and payment of various benefits started.

At a follow-up appointment with his family physician on June 15, 2015, the worker reported that "Walking causes intensification of the level of pain, needing to rests (sic) for over five minutes, with complete resolution of pain, after another 5 to 10 minutes walking again the pain gets worse, needing to rest for five minutes." The family physician referred the worker to a physiatrist.

On June 26, 2015, based on information provided by the treating physiotherapist, the WCB advised the employer that the worker was fit for work with temporary restrictions of:

• avoid walking > 15-20 minutes 

• requires ability to sit/stand as necessary 

• no lift/push/pull/carry > 10 lbs.

On July 6, 2015, the worker's family physician diagnosed the worker with a "piriformis muscle strain." The physician stated that he had reviewed the worker's temporary restrictions provided to the employer, and recommended that the worker return to work but on reduced hours of four hours per shift to start, increasing by two hours every two weeks. On July 10, 2015, the worker returned to work on a graduated schedule, with restrictions. On July 27, 2015, the worker advised his WCB case manager that he stopped working on July 21, 2015 due to ongoing symptoms.

On August 6, 2015, the worker's file was reviewed by a WCB medical advisor who advised that the current restrictions should include:

• Limiting prolonged standing 

• Walking short distances 

• Limiting prolonged sitting with the ability to shift or change position often 

• Limiting lifting and carrying to 10 lbs.

The employer was advised of the restrictions on August 6, 2015.

On September 30, 2015, the worker attended a call-in examination with the WCB medical advisor, following which the medical advisor opined that:

…the diagnosis related to the workplace accident likely is a left hip abductor mechanism strain. [The worker] does report symptoms consistent with a radiculopathy (reported electric sensation radiating down the left leg to the level of the foot and ankle). The examination findings on today's call-in examination were, however, not suggestive of clinical findings to account for a radiculopathy. In particular, no signs of dural tension were noted (based on the negative straight leg raise testing). Review of the 2009 lumbosacral spine MRI demonstrated multi-level degenerative changes with disc bulging at the L4-L5, L5 S1 levels level (sic) contacting the left S1 nerve…

The WCB medical advisor further opined that "Typically, recovery from an uncomplicated strain is expected over a period of days to weeks," and outlined the following restrictions:

• Limit squatting 

• Limit walking for prolonged periods 

• Limit lifting to 20 pounds 

• Limiting ladder climbing.

On November 19, 2015, the worker was seen by the physiatrist, who administered two injections into the piriformis. As the worker was scheduled for an MRI of his left hip that same day, a follow-up appointment was scheduled for the following week. The report of the November 19, 2015 MRI indicated "Normal MRI left hip." At the November 26, 2015 follow-up appointment, the physiatrist reviewed the MRI with the worker, provided a diagnosis of "Left hip greater trochanter tenopathy/trochanteric bursitis has significantly improved except he still has left piriformis muscle trigger point," and recommended physiotherapy.

On a Physiotherapy Discharge Assessment dated March 7, 2016, the worker's treating physiotherapist noted that the worker was "Likely able to increase to 8 hr shifts with the same restrictions." On March 14, 2016, the WCB advised the employer that the worker's restrictions were avoiding lifting, pushing or pulling more than 20 lbs. and no repetitive squatting, reaching or bending, with no restrictions on the hours of work. On March 21, 2016, the worker advised his WCB case manager that after his hours increased to eight hours per day, he had an increase in symptoms and was placed off work by his family physician on March 17, 2016.

On March 31, 2016, the worker attended for another call-in examination with the WCB medical advisor. The WCB medical advisor provided a current diagnosis of non-specific left lateral hip/buttocks pain and opined that "…a relationship likely still remains between the original workplace accident of April 21, 2015, and the current hip symptoms." The medical advisor further opined that:

Given the limited clinical findings on the examination today, it is suggested that [the worker] return on a graduated basis back to work. Beyond the subjective complaint of pain to the left lateral hip, there is no clinical findings to support a limitation in the time spent during the day at work. The following restrictions are suggested in relation to the left hip:

• Limiting standing and walking for prolonged periods of time with the ability to take micro-breaks. 

• Limiting repetitive bending or stooping with the left hip.

These restrictions should be reviewed again in four to six weeks and is expected to be required only on a temporary basis.

On April 14, 2016, the WCB advised the employer of the restrictions, along with a graduated return to work schedule of:

• April 18-22 4 hrs per day 

• April 25-29 6 hrs per day 

• May 2 no limitation on hours.

On May 3, 2016, the worker contacted the WCB to advise that he had an increase in his symptoms after the increase in his hours at work. On May 6, 2016, the worker's family physician recommended that the worker return to four hour shifts per day. On May 4, 2016, the treating physiatrist diagnosed the worker with "Left buttock and sacroiliac and hip pain most probably related to left sacroilitis and piriformis syndrome," and referred the worker to a second physiatrist for a left sacroiliac joint steroid injection.

On May 24, 2016, the WCB medical advisor reviewed the worker's file and noted:

…There has been no functional gains with physiotherapy, medications or restriction of the work day. There has been no sustained robust improvement of the nonspecific left hip symptoms with the injections that has been performed thus far. As such given the aforementioned, the diagnosis concordant with the call in examination clinical findings remains nonspecific left hip pain.

On June 8, 2016, the WCB medical advisor again reviewed the worker's file, and opined:

The May 10, 2016 treating physiatrist offered a diagnosis of sacroilitis. Sacroilitis is never the result of a traumatic event or injury to the sacroiliac joints, rather a manifestation of systemic disease. These include condition (sic) like inflammatory bowel disease, ankylosing spondylitis, gout, Whipple's disease, psoriatic arthritis, rheumatoid arthritis. The Sacroiliac joint is anatomically remote from the greater trochanter, lateral thigh/hip and piriformis muscle.

A further review of the worker's file was conducted by a WCB physiatrist consultant on July 26, 2016. The WCB physiatrist consultant opined that the worker's current diagnoses did not appear to be medically accounted for in relation to the workplace incident.

On August 30, 2016, Compensation Services advised the worker that they considered he had recovered from the effects of his April 21, 2015 workplace accident and partial wage loss benefits would be paid to September 6, 2016.

The WCB subsequently received a copy of a report from the second physiatrist dated September 16, 2016, in which the second physiatrist stated that the worker presented with "non-specific left gluteal region pain. The physiatrist noted findings of significant irritability of the left sacroiliac joint and agreed with the treating physiatrist's suggestion of considering a sacroiliac joint injection.

On July 12, 2017, a worker advisor acting on behalf of the worker requested that Compensation Services reconsider their decision to end the worker's benefits. The worker's representative submitted a May 15, 2017 report from the worker's treating physiatrist which the worker felt supported a causal relationship between his current symptoms and the April 21, 2015 workplace accident.

Compensation Services requested and received a follow-up report from the worker's physiatrist dated August 3, 2017. A copy of a June 26, 2017 MRI of the worker's lumbar spine was also received, the stated impression from which was: "There has been minor progression of degenerative changes since 2011. No specific nerve root compression is seen."

The additional medical information was reviewed by the WCB physiatrist consultant on September 22, 2017. The WCB physiatrist consultant also spoke with the radiologist who had interpreted the June 26, 2017 MRI. The consultant confirmed the diagnosis of "Nonspecific left hip and buttock pain" and noted the treating physiatrist's reference to "a non-verified left lower lumbosacral radiculopathy." The consultant opined that "…there is no medical evidence to support the medical relatedness of the current presentation of ongoing nonspecific symptoms of the left lateral hip and left buttock."

On September 28, 2017, Compensation Services advised the worker's representative that the new medical information had been reviewed, but there was no change to the WCB's decision to end benefits.

On March 12, 2018, the worker's representative again requested that Compensation Services reconsider their decision, and included a February 27, 2018 report from a physician with an interest in occupational medicine, who provided a diagnosis of "chronic left piriformis and gluteal muscle strain and myofascial pain" for the worker.

On March 21, 2018, the report from the physician with an interest in occupational medicine was reviewed and an opinion provided by the WCB physiatrist consultant. The WCB physiatrist consultant opined that the diagnosis for the worker's ongoing symptoms was nonspecific left hip and buttock pain, based on the worker's reported subjective symptoms and lack of any specific physical or pathoanatomic diagnosis identified for these symptomatic complaints. The WCB physiatrist consultant further opined that the medical evidence did not support the worker's diagnosis being causally related to the workplace accident of April 21, 2015.

On March 27, 2018, Compensation Services advised the worker's representative that they remained of the view that the worker had recovered from the workplace injury.

On April 13, 2018, the worker's representative requested that Review Office reconsider Compensation Services' decision. The worker's representative relied on the previously submitted medical information and submitted that the continuity of the medical information provided evidence of a relationship between the worker's current diagnosis and the workplace accident.

On May 3, 2018, Review Office determined that the worker was not entitled to further benefits. Review Office stated that they were unable to relate the worker's ongoing need for work restrictions or medical treatment to his claim. Review Office found that the worker's compensable injury resulting from the April 21, 2015 workplace accident involved a strain, which would have resolved and would not have required further treatment after September 2016. Accordingly, there was no entitlement to benefits after September 6, 2016.

On June 26, 2018, the worker's representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On June 20, 2019, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

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.

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 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."

Subsection 39(2) of the Act provides that wage loss benefits are payable until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.

WCB Policy 44.10.20.10, Pre-Existing Conditions (the "Policy") addresses the issue of pre-existing conditions when adjudicating and administering compensation, and states, in part, that:

The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

Worker's Position

The worker was assisted by a worker advisor, who made an oral presentation, a copy of which was also provided to the panel at the hearing. The worker was provided with the services of an interpreter and responded to questions from the worker advisor and the panel.

The worker's position was that the evidence supports that he had not recovered from his compensable injuries at the time the WCB discontinued his benefits and beyond, and is entitled to further benefits for his specific compensable left-sided injuries which are related to his April 2015 workplace accident.

The worker's representative submitted that website information supports that the WCB rightly accepted the worker's claim for a specific left-sided injury to the piriformis related to the workplace accident, which involved a heavy lifting incident.

It was submitted that the compensable left area of injury continues to be symptomatic and medical information confirms the worker's symptoms and findings are predominately localized over the left gluteal region and left piriformis muscle. The worker's representative submitted that this particular injury has continued to disable the worker from his regular duties and to cause a loss of earning capacity.

The worker's representative submitted that the WCB discontinued benefits on the basis that they were unable to account for the worker's ongoing difficulties being related to the workplace accident, given the length of time the worker had been experiencing difficulties. The WCB therefore concluded that the worker had recovered from the effects of his accident. The worker's representative stated that they fully disagreed with this conclusion, and submitted that as long as there is medical information that identifies and supports ongoing difficulties are related to compensable diagnoses that were caused by the workplace accident, there is further WCB responsibility.

In support of their position, the worker's representative noted that the worker's family physician provided a report less than one month prior to benefits being terminated which confirmed that the findings included the diagnosis of left piriformis muscle syndrome. The family physician subsequently removed the worker from his duties as of October 2016 due to his compensable left-sided injury, creating a physician-imposed loss of earning capacity for which the WCB is responsible. The representative also referred to reports from the treating physiatrist and the physician with an interest in occupational medicine as additional support that the compensable diagnosis of left piriformis syndrome continued to be the cause of the worker's ongoing disability.

The worker's representative submitted that medical evidence from the treating physician and specialists who examined the worker should hold greater weight than that of the WCB orthopedic consultant. The representative noted that the WCB's consultant, who never examined the worker, provided an opinion that he could not find a physical diagnosis. The treating specialist and physicians, on the other hand, were able to confirm a specific pathoanatomic and physical cause that continued to be related to the workplace accident. The representative submitted that Review Office erred in their assessment of the case, as the medical evidence prior to and beyond the date the WCB discontinued benefits counters the WCB's position that the worker has recovered from his compensable injuries and supports that the worker continues to suffer from the effects of the April 21, 2015 workplace accident.

Finally, the worker's representative noted that the results of a Functional Capacity Evaluation referred to on file determined that the worker is disabled from his regular occupation and the employer confirmed they were unable to accommodate the worker with any alternate or modified position. The representative submitted that given the employer's inability to accommodate the worker's compensable injuries, a loss of earning capacity continued to exist for which there is a further WCB responsibility.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits in relation to the April 21, 2015 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a further loss of earning capacity and/or required further medical aid as a result of his April 21, 2015 workplace injury.

Based on our review of all the information which is before us, the panel is unable to find that the worker sustained a further loss of earning capacity or required further medical aid as a result of his April 21, 2015 workplace injury.

The panel accepts the initial diagnosis of a sprain/strain injury to the piriformis as being causally related to the April 21, 2015 workplace accident.

The panel acknowledges the worker's ongoing subjective complaints of continuing symptomatology in the left gluteal and piriformis area, but is unable to relate those complaints to the workplace injury based on the available medical evidence.

The panel notes that there were concurrent issues in the course of the file with respect to the worker's lower back and left hip/buttock areas. Medical information on file shows that the worker has significant degenerative back conditions. The panel is satisfied that the evidence shows these were pre-existing conditions which are not attributable to the workplace accident or injury. In this regard, the panel notes that there was a lack of reporting of lower back symptoms at or around the time of the workplace accident. The June 26, 2017 report of the MRI of the worker's lumbar spine notes that comparison was made to a previous study of 2011, and the interpreting radiologist stated that there had been "minor progression of degenerative changes since 2011." Based on the available evidence, the panel is satisfied that the worker's degenerative back conditions were not causally related to his April 21, 2015 workplace accident and are non-compensable.

With respect to the left hip/buttock areas, the panel finds that there is inconsistency in reported findings from examinations by the treating physiatrist on the one hand, and by the WCB medical advisor and the second physiatrist on the other hand, at or near the time the worker's benefits ended. The panel notes that the treating physiatrist indicates significant and ongoing symptoms and issues, and provides or proposes a variety of different diagnoses at different times. The WCB medical advisor and the second physiatrist report less symptomatology and provide a diagnosis of non-specific left lateral hip/buttocks pain and non-specific left gluteal region pain, respectively.

The panel places weight on the WCB medical advisor's report of his March 31, 2016 call-in examination of the worker, where the medical advisor noted "limited clinical findings...including slight tenderness to the left lateral hip and left lateral buttocks region, as well as the normal range of motion of the left hip and lumbosacral spine without reported pain with any of these maneuvers" and provided a diagnosis of non-specific left lateral hip/buttocks pain.

In his report of the March 31, 2016 call-in examination, the WCB medical advisor noted that:

Beyond the subjective complaint of pain to the left lateral hip, there is no clinical findings to support a limitation in the time spent during the day at work. The aforementioned is indicative of significant improvement of the clinical findings from the September 30, 2015, call-in examination. As such, on the balance of probabilities, given the aforementioned temporal relationship and the documented improvement in clinical findings, a relationship likely still remains between the original workplace accident of April 21, 2015, and the current left hip symptoms."

The WCB medical advisor recommended relatively limited restrictions, noting that they were expected to be required on a temporary basis only. The WCB medical advisor further opined that "No specific treatment suggestions are forthcoming at this time beyond a return to regular daily activity and workplace activity."

Based on the available information, the panel is satisfied that the worker no longer had a loss of earning capacity as a result of his workplace accident as at the beginning of September 2016. The panel has not identified restrictions with respect to the compensable injury which would have prevented the worker from engaging in a return to work. Given the length of time the worker had been off work and the nature of his injury, which occurred in the environment of significant pre-existing conditions, the panel is satisfied that a graduated return to work would have been appropriate, following which the worker would have been expected to have returned to his full pre-accident functional capacity.

The panel acknowledges there is a reference in the February 27, 2018 letter from the physician with an interest in occupational medicine to increased left hip and leg pain after the worker returned to fulltime hours and to the family physician having noted the worker's injury relapsed due to increased hours of activity and having advised the worker to stop work in late October 2016. The panel is not satisfied, however, that any such increase in symptoms at that time would have been related to the worker's compensable injury.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not sustain a further loss of earning capacity or require further medical aid as a result of his April 21, 2015 workplace injury. The panel therefore finds that the worker is not entitled to further benefits in relation to the April 21, 2015 accident.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 30th day of July, 2019