The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to wage loss benefits after April 9, 2012. A hearing was held on June 13, 2018 to consider the worker's appeal

Issue

Whether or not the worker is entitled to wage loss benefits after April 9, 2012.

Decision

That the worker is not entitled to wage loss benefits after April 9, 2012.

Background

On May 20, 2011, the worker filed a Worker Incident Report with the WCB advising that she had injured her lower back in an incident at work on May 17, 2011. She described the incident as:

I was pulling a big food cart with a coworker. I had to push the cart through the door and I got hit with the…door knob guard which is a big piece of metal in the lower back.

At an initial assessment with a chiropractor on May 19, 2011, the worker reported acute back pain, left leg paresthesia, weakness, and pain when sitting, bending, twisting, and walking, and while wearing her work belt. The chiropractor diagnosed her with a left sacroiliac joint and lumbosacral sprain, and vertebral subluxation complex, and recommended she remain off work.

On May 24, 2011, the worker attended her family physician, complaining of pain to her lower back, and difficulty walking or sitting. The physician noted no erythema or edema, and pain on palpation of the worker's lower lumbar spine, and diagnosed a lumbar sprain. The physician recommended that the worker attend for physiotherapy, ice her lower back, and take pain medication as needed. Modified duties of no lifting, carrying, pushing or pulling were also recommended. An x ray of the worker's lumbosacral spine taken that same day noted "There is disc space narrowing with end plate spurring at L5-S1. Facet degenerative changes are present at this level."

On May 27, 2011, the worker spoke with a WCB adjudicator. She confirmed the mechanism of injury, that "…the metal guard on the door whacked her in the back." She further noted that "The door was closing and she was going through and it was a huge terrible surprise and she had her back to the door handle. It hit her in the lower back in the center." The worker indicated that she had a recent claim for a motor vehicle accident in November 2010 which was still ongoing and in respect of which she was still receiving chiropractic care. She advised that her current injury from the workplace accident was in a different area than her ongoing claim for the motor vehicle accident. She also advised that she finished her shift on the day of the accident but ended up sitting a lot for the rest of her shift and had to remove the safety equipment she was wearing as the extra weight was too much for her. She said her chiropractor had put her off work until that weekend. The worker's claim was accepted and payment of wage loss and medical aid benefits commenced.

At the request of the worker's treating family physician, a CT scan of the worker's lumbar spine was performed on June 3, 2011. The CT scan showed that there was no disc protrusion, nerve root compression or spinal stenosis at L3-L4, L4-L5 or L5-S1, but mild facet osteoarthritis was noted in all those locations. An MRI of the worker's lumbar spine was performed on September 23, 2011. The MRI indicated that "No change is seen from the prior CT of June 2011. There is no specific nerve root compromise or stenosis."

On October 11, 2011, the worker attended a call-in examination with a WCB medical advisor. In her notes from that examination, the WCB medical advisor opined that the worker's diagnosis as related to the May 17, 2011 workplace accident was most likely "…a contusion or low back strain." It was noted that the worker now presented with "…mainly centralized low back pain with some symptoms of radiculopathy" but there was no diagnostic imaging or clinical findings to support either the radicular symptoms or nerve impingement. The medical advisor reported that the worker continued to have loss of range of motion with tenderness and poor core strength, which would be most consistent with non-specific low back pain. The medical advisor further noted that the symptoms and clinical findings were consistent throughout the claim, which supported that they remained related to the workplace injury, but that most contusions or strains would be expected to resolve in four to six weeks, and she was unsure why the worker's symptoms had not resolved other than that she had not had any active-based treatment to date.

With respect to a pre-existing condition, the WCB medical advisor noted that the worker had reported previous episodes of low back pain related to workplace injuries, but those injuries appeared to be strains and had resolved during a normal timeframe, and "It is unlikely they are contributing to any delay in recovery." The medical advisor opined that the degenerative findings on the MRI were "…really quite minor and would be very consistent…with the normal aging process." The medical advisor further opined that the worker was not totally disabled, but would not be able to have any direct client contact and could not do sedentary duties as the prolonged sitting could aggravate symptoms. The medical advisor recommended that the worker undergo a reconditioning program with exercise-based therapy prior to determining whether she was fit to return to her full regular duties.

On November 7, 2011, the worker began a reconditioning program. On December 30, 2011, the worker met with her WCB case manager and the treating physiotherapist to review her status and discuss a return to work. A return to work program was recommended, and in a report dated January 6, 2012, the treating physiotherapist set out initial recommendations for a return to work schedule, with modified duties, consisting of: a gradual return to work, commencing at 4 hours/day Monday, Wednesday and Friday to start; no pushing or pulling over 25 pounds; no lifting greater than 15 pounds from floor to waist; no lifting greater than 10 pounds over head; avoid prolonged stooped or bent forward positions; must be able to change positions as tolerated; should be able to sit for up to one hour as tolerated; and must be able to stand/walk for up to 20 minutes as required. Those restrictions were provided to the employer on January 27, 2012. On February 7, 2012, the worker notified the WCB that the employer had advised her that a position could be opening up within her restrictions which she was interested in trying.

On February 8, 2012, the worker's file was again reviewed by the WCB medical advisor. The medical advisor opined that the worker's continuing complaints of pain were consistent with non specific low back pain, with some radicular features, but there was no MRI correlate for a radiculopathy and it was not expected that the workplace injury would cause pain for over eight months, especially with the treatment the worker had received to date. The medical advisor stated that the diagnosis was based only on symptoms, and there was little by way of objective findings. The medical advisor agreed with the graduated return to work program/schedule and restrictions as recommended by the physiotherapist conducting the reconditioning program, but indicated she would include a "…slow but steady increase in hours worked and duties performed." She further opined that there were no findings on MRI or clinical examinations from the worker's treating healthcare providers that would contra-indicate the worker's return to full activity.

The WCB subsequently received further medical information, including a report from a physiatrist who had examined the worker on December 13, 2011 and had opined that the worker "…has a mechanical back pain related to the degenerative disk [sic] and the facet arthritis which is mild." Core strengthening and stretching exercises were recommended to improve the mobility of the worker's spine.

On March 24, 2012, the WCB medical advisor reviewed the worker's updated claim file, and opined that her current presentation "…could not be medically accounted for in relation to the workplace injury." The medical advisor further opined that the mechanism of the workplace injury would be expected to cause a low back contusion/strain or non-specific pain, which would have initially worsened then gradually improved over the next few weeks. The medical advisor noted that a gradual return to full activity would have been part of the recognized treatment for this type of injury.

The WCB medical advisor further noted that the worker had received appropriate treatment for her injury, with chiropractic, physiotherapy and reconditioning, which would have resolved any effects of her compensable injury, and that any ongoing pain was more likely related to non-compensable factors. She again noted that the worker should be participating in active treatment and gradual return to her regular activity. On April 2, 2012, the WCB's Compensation Services advised the worker that her entitlement to wage loss and medical aid benefits would end on April 9, 2012 as they were unable to establish a relationship between her current back condition and the original workplace accident.

On April 12, 2012, the worker requested that Review Office reconsider Compensation Services' decision. The worker provided a chronology of her injury, including details regarding her previous WCB claims, and submitted that she did not have her symptoms prior to the workplace accident and that she continued to suffer from the effects of her injury. On June 12, 2012, the worker provided a further medical note from her family physician, who opined that the worker had "…mechanical back pain as a result of injury May 17th, 2011." Review Office was also provided with a report from the worker's physiatrist dated June 13, 2012, which noted a mostly normal examination and recommended a reconditioning program prior to the worker returning to her regular duties. On June 23, 2012, the worker provided a further submission and chronology of her injury to Review Office.

On June 28, 2012, Review Office determined that the worker was not entitled to wage loss benefits beyond April 9, 2012. Review Office placed weight on the WCB medical advisor's opinion of March 24, 2012 and her conclusion that the worker had a "…relatively minor mechanism of injury…" almost a year ago which would be expected to cause a low back contusion/strain or non-specific pain and had received the appropriate treatment which would have resolved any effects of the compensable injury.

With respect to the worker's position that changes in her back were partly due to her prior WCB injuries, Review Office noted that in both her previous claims, the worker reported receiving chiropractic treatment then resolution of her injuries. Review Office was unable to establish a relationship between those injuries and the worker's diagnosis of mechanical low back pain related to the degenerative disc and facet arthritis.

With respect to the recommendation by the worker's physiatrist for a reconditioning program, Review Office noted that such a program had been arranged for the worker, along with an extension to that program, as well as physiotherapy after the program ended, and a three month gym pass had also been approved. Review Office was therefore unable to establish a cause and effect relationship between the worker's symptoms and the effects of the compensable injury beyond April 9, 2012.

On September 12, 2013, the worker submitted additional medical reports to be added to her file and advised that she did not wish to initiate a file review at that time.

On January 18, 2016, the worker's union representative submitted further medical reports, including July 16, 2015 and November 25, 2015 reports from a physician with an interest in occupational health medicine ("occupational health physician"), who opined that the diagnosis related to the workplace accident was left sacroiliac joint irritation and dysfunction, and requested reconsideration of Review Office's June 28, 2012 decision.

On February 23, 2016, the worker's union representative submitted a further medical report dated September 16, 2015 from the worker's treating physiotherapist, who opined that the worker's pain referral into the left lateral lower leg and Achilles region was "consistent with S1 radiculopathy which would be the result of her initial injury sustained May 17, 2011" and that "There is also evidence of Left sacroiliac joint dysfunction, which is a source of lower back and gluteal region pain but also may be a contributing factor to her pain in the lower extremity."

On April 14, 2016, Review Office again determined that the worker was not entitled to benefits after April 9, 2012. Review Office placed weight on the medical evidence provided closest in proximity to the workplace accident. Review Office noted that the WCB medical advisor's notes of the call-in examination in October 2011 recorded that the Gillet's test, used to identify abnormal movement of the SI joint, "…showed normal SI movement" and that they were unable to accept the July 2015 diagnosis of left sacroiliac joint dysfunction, made by the occupational health physician over four years after the workplace accident, as a compensable injury in relation to the claim. Review Office further noted that the statements by the physiotherapist in his September 16, 2015 report were speculative and were not supported by the initial file information.

On January 16, 2018, an advocate representing the worker filed an appeal with 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 January 20, 2020, the appeal panel met to discuss the case further and render its final decision on the issue under appeal.

Reasons

Applicable Legislation and Policy

As the worker was employed by a federal government agency or department, her claim is adjudicated under the Government Employees Compensation Act ("GECA"). Subsection 4(1) of the GECA provides that an employee who is caused personal injury by an accident arising out of and in the course of their employment is entitled to compensation.

"Compensation" is defined in section 2 of the GECA to include medical and hospital expenses and any other benefits, expenses or allowances that are authorized by the law of the province where the employee is usually employed respecting compensation for workmen and the dependants of deceased workmen.

Pursuant to paragraph 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker who is covered under The Workers Compensation Act (the "Act").

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

Subsection 4(2) of the Act provides that 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 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.

The WCB's Board of Directors has established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy"), which addresses the issue of pre-existing conditions when administering benefits. The stated purpose of the Policy is identified, in part, as follows:

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.

With respect to wage loss eligibility, the Policy states, in part, that:

When a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and

2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

The following definitions are set out in the Policy:

Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.

Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker's Position

The worker was assisted at the hearing by a worker advocate, who made a presentation on her behalf, a written copy of which was also provided to the panel. The worker responded to questions from the worker's representative and from the panel.

The worker's position was that she suffered a back injury at work from which she has not recovered, and is entitled to wage loss benefits beyond April 9, 2012.

The worker's representative submitted that the worker was injured at work on May 17, 2011 when she was hit hard on the back by a heavy door. This resulted in her being off work for almost one year, then returning to work with ongoing restrictions. The representative noted that the worker suffered further injuries to her back in 2013, 2015 and January 2016, which were the subject of other WCB claims. She confirmed that they were only addressing the worker's 2011 claim on this appeal, for acceptance of wage loss benefits and entitlements after April 9, 2012.

The worker's representative submitted that the worker never made a significant recovery from her 2011 injury and continued to seek treatment for her lower back pain. She submitted that the proposed diagnoses evolved over time and it was eventually determined that the worker's lower back pain was in her sacroiliac joint and she is suffering from ischiofemoral impingement.

The worker's representative submitted a report from the worker's treating physiotherapist dated June 11, 2018, which they had just received and which summarized the physiotherapist's assessment of the worker from March 18, 2015 and subsequently. The physiotherapist noted in the report that the worker's low back pain and pain into her left hip and upper and lower leg region was consistent with sciatic nerve irritation, sacroiliac joint dysfunction and myofascial pain, all of which could be the result of her May 17, 2011 injury not fully resolving. The physiotherapist further noted the worker's recent diagnosis of ischiofemoral impingement syndrome, based on MRI results, and stated that in his view, this was consistent with what he had found clinically since he first saw the worker in 2015.

In conclusion, the worker's representative submitted that the worker was originally misdiagnosed, and that as a result of this misdiagnosis of her injury, she had not recovered and her claim for continued time lost from work should be accepted and full wage loss benefits paid for time lost after April 9, 2012.

As indicated previously, following the hearing, the panel requested additional medical information, which was later received and forwarded to the worker for comment. On December 10, 2019, the worker provided a lengthy response to the information provided subsequent to the hearing, which included an extensive written submission dated December 8, 2019 and considerable medical literature in support of the worker's submission, with "material on all potential differential and contributing diagnoses."

In her December 8, 2019 written submission, the worker stated that her life has been severely and detrimentally affected by the seemingly innocuous traumatic injury of May 2011, and she has been thrown into a world of pain and disability. The worker noted that her injury was originally accepted by the WCB as a contusion to her lower back. The worker submitted that the medical professionals discounted the severity of her trauma, and treated her injury as an insignificant bump.

The worker noted that her injury has proven to be complex. She stated that it took four years to confirm a missed diagnosis of a sacroiliac joint injury. Diagnostic and therapeutic sacroiliac joint injections, which she has generally received every three months since then, successfully mitigated and continued to mitigate a measure of the pain related to her sacroiliac joint injury. A December 2017 MRI revealed a rare diagnosis of ischiofemoral impingement, which answers a large part of the pain picture and is believed to be related to her 2011 workplace injury.

The worker submitted that there was insufficient investigation and evidence to terminate her compensable injury claim. She submitted that she had not recovered from her 2011 injury when the WCB terminated her claim due to a trivial misdiagnosis of facet osteoarthritis and degenerative disc, and her condition was allowed to degrade, as opposed to improve or stabilize. The worker submitted that she remains injured, and despite her attempts to return to work, she has been unable to do so.

The worker concluded:

In summary, I would like to say that I believe when the door handle guard hit my left lower back, structures of the Sacroiliac Joint were damaged, possibly the ligaments associated with the SI joint, as well as the Fascia and gluteal and piriformis muscles in the impact area. The Gluteal muscle group has been exceptionally painful and tight since the injury and has exerted great pressure on the Greater Trochanter which has caused small osteophyte growth on the left femur head as a result of instability. The resulting hip and pelvic instability, has caused pelvic floor issues…and Degenerative Pubic Symphysis. It is not unrealistic to see and apply a connection between the aforementioned issues and the iliopsoas which attaches at the spine and at the lesser Trochanter. The muscles pulling in toward the ischium is the cause for Ischiofemoral Impingement, crushing the Quadratus Femoris and Sciatic nerve. All of my muscles, tendons and fascia have been termed clinically excessively "tight" and I have experienced a great deal of pain and disability since the injury. I have experienced tremendous pain and mobility issues related to the lumbar fascia, the iliotibial fascia as well as extending upward from the lumbar area.

It has been impossible for doctors involved in my medical case to determine a concrete diagnosis, and I am certain that this panel will not come to any conclusion about the injury either. As you can see by the list of differential diagnoses, the symptom overlap is tremendous. Proper diagnosis is critical to determine appropriate therapy and allow for recovery…

Employer's Position

The employer was represented by a senior staff member and by a labour relations advisor.

The employer did not take a position on the appeal. The employer's representative advised that the purpose of their attending the hearing was basically to assist the panel by answering any questions that might arise, and that they did not have any specific comments to make.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits after April 9, 2012. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a further loss of earning capacity after April 9, 2012 as a result of her May 17, 2011 workplace incident. The panel is unable to make that finding, for the reasons that follow.

As indicated previously, the worker provided a lengthy response to the information requested by the panel and provided subsequent to the hearing of the appeal. The panel acknowledges that response, and has carefully reviewed and considered the worker's detailed and comprehensive submission and supporting materials.

Based on our review and consideration of all of the information which is before us, on file and as presented at the hearing and as received subsequently in response to requests, the panel is not satisfied, on a balance of probabilities, that the worker's ongoing difficulties from April 9, 2012 to the present are related to her May 17, 2011 workplace injury.

At the hearing, the panel carefully reviewed the mechanism of injury with the worker. The evidence indicates that the worker was struck with a 4 to 5 inch wide metal door handle guard on a very heavy steel door. The worker indicated that she walked through the door with her back fully extended, as she was pushing a food cart, and the door swung shut and the metal guard hit her with force. The worker indicated that the metal guard hit her in the lower back, probably one or two inches to the left of her spine. The panel accepts the worker's description of the mechanism of injury, but is satisfied that it was non-sinister in nature and was not sufficiently forceful or serious to have caused significant physical or neurological damage.

The evidence shows that there is a multitude of different diagnoses or proposed diagnoses on file. The panel has reviewed the various proposed diagnoses, including those involving or relating to myofascial pain syndrome, piriformis syndrome, L5-S1 radiculopathy, sciatica, sacroiliac joint dysfunction, and ischiofemoral impingement. Based on our review of the evidence and submissions, the panel is unable to connect those diagnoses to the worker's 2011 compensable accident or injury.

The worker focused on two diagnoses in particular on her appeal, namely sacroiliac joint irritation or dysfunction, and ischiofemoral impingement.

With respect to sacroiliac joint dysfunction, the panel notes that this diagnosis was first identified by the occupational health physician in his July 16, 2015 report, following his assessment of the worker on June 4 and July 15, 2015, as a diagnosis that had previously been missed.

The panel notes, however, that the report from the WCB medical advisor of her call-in examination of the worker on October 11, 2011, as well as reports from the treating physiatrist dated December 14, 2011 and June 13, 2012 all indicate that they were testing for sacroiliac joint irritation or dysfunction, but this condition was found not to be present at that time. The panel notes in particular the physiatrist's June 13, 2012 report of a one hour visit with the worker, where the results of her examination of the worker showed improvement over her previous examination six months earlier, at which a significant loss of range of motion had been noted, and showed normal findings with no identification of a diagnosis with respect to the sacroiliac joint area, with the only recommendation being for reconditioning.

Given that the diagnosis of sacroiliac joint irritation or dysfunction was made more than four years after the workplace accident, and no abnormalities had been identified in 2011 and 2012, despite testing for same, the panel is unable to relate that condition or diagnosis to the worker's 2011 workplace incident or injury.

The panel is similarly unable to find that the evidence supports that the proposed diagnosis of ischiofemoral impingement is related to the worker's 2011 workplace incident. The evidence shows that this diagnosis was first referred to in the December 18, 2017 MRI, the results of which showed:"…3. Ischiofemoral impingement syndrome bilaterally with moderate atrophy of the quadratus femoris."

As the worker indicated at the hearing that she had seen an orthopedic surgeon with respect to this condition, the panel requested further information from the worker's treating orthopedic surgeon following the hearing. In a response to that request dated November 1, 2019, the surgeon stated that "I have not actually made that diagnosis. I stated that the MRI suggested ischiofemoral impingement but that I was not sure about the diagnosis." The surgeon further noted that the other hip showed ischiofemoral impingement on MRI as well" and concluded that "there is nothing I can say to resolve this question definitively."

The panel further notes that although the worker has indicated that the door hit her on the left side of her low back, the MRI results indicate "bilateral" ischiofemoral impingement. The panel is unable to account for the bilateral nature of any such condition in relation to the 2011 workplace incident, given that the original mechanism of injury indicates a single point of contact to the left of the worker’s spine. In the panel’s view, the bilateral nature of this condition is not consistent with the worker’s workplace injury.

As part of her submission to the panel on December 10, 2019, the worker included a report from a sports medicine physician dated October 23, 2019, in which the physician notes that "the [worker] thinks there is a component of SI joint involvement and ischiofemoral impingement syndrome." The physician went on to state: "Symptoms consistent with IFI, recommended stretches to target hip adductors to help with the mechanical impingement of the sciatic nerve." Again, while the panel acknowledges the possible presence of this condition, we are unable to accept that the worker's symptoms of ischiofemoral impingement syndrome are causally related to the 2011 workplace incident, more than eight years earlier for the same reasons as previously stated.

In conclusion, the panel acknowledges the worker's frustration and that the worker has significant ongoing pain and medical difficulties, but is unable to relate such pain and difficulties to the worker's May 17, 2011 workplace incident.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's ongoing difficulties from April 9, 2012 to the present are not related to her May 17, 2011 workplace injury.

As a result, the panel finds that the worker did not suffer a further loss of earning capacity after April 9, 2012 as a result of her May 17, 2011 workplace incident. The worker is therefore not entitled to wage loss benefits after April 9, 2012.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

- Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 7th day of February, 2020