Decision #02/00 - Type: Workers Compensation
An Appeal Panel hearing was held on December 13, 1999, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on December 13, 1999.
Whether or not the claimant is entitled to benefits beyond August 29, 1999; and
Whether or not the claimant is entitled to a permanent partial disability award.
The claimant is not entitled to benefits beyond August 29, 1999; and
That the claimant is not entitled to a permanent partial disability award.
The claimant has previous compensable back injuries dating back to 1972.
While employed at a meat packaging plant on August 26, 1991, the claimant experienced lower back pain radiating through the groin and both legs. Initial medical information diagnosed the claimant with a back strain. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on August 28, 1991.
Starting December 12, 1991, the claimant was treated by a rehabilitation medicine specialist (physiatrist). The physiatrist diagnosed the claimant with lumbar disc degeneration with overlying myofascial pain and dysfunction. The claimant underwent a work hardening program, physiotherapy treatment and a functional capacity evaluation. On June 15, 1992, the claimant was considered capable of performing alternate duties and restrictions were outlined to avoid heavy lifting, bending and standing for a maximum of 4 hours at a time.
On July 6, 1992, the claimant returned to alternate duties with the accident employer. On September 29, 1992, the claimant experienced increasing back pain and laid off work. On October 28, 1992, the treating physiatrist reported a flare-up of myofascial back and leg pain. The claimant was paid temporary total disability benefits commencing October 1, 1992.
On December 22, 1992, the treating physiatrist reported that trigger point needling was carried out in the left paraspinal and right and left serratus anterior muscles. It was recommended that the claimant return to modified duties in January, 1993, and temporary total disability benefits were paid up to that date.
In a follow-up report dated March 26, 1993, the physiatrist stated that the claimant was feeling better than he did prior to his treatments but that he still had residual mid and low back discomfort going down into his legs.
On May 3, 1993, (Claim No. 9306 1498/2ME4) the claimant was hanging hams when he felt pain in his lower back and groin. The attending physician stated that the claimant sustained a recurrence of lower lumbar ligament sprains (i.e. myofascial syndrome, exacerbation of previous L4-S1 lumbar arthritis).
On May 11, 1993, a WCB medical advisor determined that the restrictions outlined by the physiatrist in his letter of March 26, 1993, were preventative in nature, and that the claimant had recovered from the compensable injury. In a letter dated May 13, 1993, the employer indicated that the work that the claimant performed on May 3, 1993 was within his physical restrictions.
A sworn statement was obtained from the claimant dated May 25, 1993. The statement contained details with respect to his work activities since January 1993. The claimant related his current back problems to the 1991 injury and stated that he had never been 100% since the accident.
In a decision, dated July 19, 1993, primary adjudication determined that from the weight of evidence, the claimant had recovered from the effects of the 1991 injury and that the requirement for restrictions was required strictly on a preventive basis to avoid re-injury. Primary adjudication determined that the 1993 claim was acceptable as a new aggravation, related to the duties performed by the claimant on May 3, 1993. Time loss benefits commenced on May 4, 1993.
A medical advisor reviewed the case on December 22, 1993, regarding the relationship of the claimant's ongoing back problems to the 1991 compensable injury and/or 1993 claim. The medical advisor indicated that the claimant had significant time loss with myofascial pain in 1991 that eventually resolved and that the claimant had recovered. He stated that the 1993 injury to his lumbar musculature, although a separate new injury, produced a reactivation of his latent myofascial problems from the prior injury.
The claimant, on May 5, 1995, requested reconsideration of the WCB's decision to open a new claim for the 1993 injury, rather than consider this a recurrence of his original 1991 injury. The case was referred to Review Office for consideration. Review Office subsequently determined that the incident of May 3, 1993 constituted a new compensable accident and not a recurrence of the injuries sustained in 1991. On February 20, 1996, this decision was overturned by an Appeal Panel who determined that the time loss from work commencing May 4, 1993 was a recurrence of the injuries sustained on August 26, 1991 and was not as a result of the new incident on May 3, 1993.
By March 22, 1994, the claimant was considered fit for work with six months restrictions to avoid lifting and bending. Subsequent file documentation showed that the accident employer was unable to accommodate the claimant with duties respecting these restrictions. Vocational rehabilitation services were then provided to the claimant, which included re-education and training. Between September 1, 1994 and November 30, 1998, the claimant was enrolled in a three year business administration program which he completed.
The claimant was assessed several times during the course of this claim by WCB medical advisors. The following is a brief outline of those examinations:
- on September 13, 1994, a WCB medical advisor indicated that the claimant had regional myofascial pain syndrome and was not totally disabled. There was a high likelihood that restrictions would be permanent because the claimant had an extensive history of low back pain and had continuous back pain since at least 1985.
- on April 12, 1996, a WCB physiatrist noted that the claimant continued to have low back pain as in the previous examination. This was mechanical in nature and was related to lower lumbosacral spondylosis with documented evidence of degenerative disc disease. The claimant demonstrated an improvement in his myofascial pain involvement with exercises. The medical advisor stated that restrictions should be reassessed in one year's time.
- on August 27, 1996, the claimant was reassessed by the WCB physiatrist. It was determined that the claimant had shown some improvement of a minor nature since the last assessment. There was still evidence of regional myofascial pain syndrome. It was suggested that the present restrictions be continued.
- -following examination on September 2, 1997, the WCB medical advisor stated there had been no improvement upon which to consider lifting the restrictions to avoid lifting greater than 25 pounds, and repetitive bending. These limitations, according to the medical advisor, were related to a combination of pre-existing and myofascial features. It was felt that the restrictions should be reviewed again in one year's time.
In the interim, an occupational health physician assessed the claimant in January 1998. In a report dated February 4, 1998, the specialist indicated that the claimant appeared to have piriformis syndrome on the left side contributing to pelvic movement pain, impotence, pain with defecation and radiating into the left leg suggestive of intermittent nerve entrapment. There was widespread evidence of myofascial pain on examination. Further treatment was suggested in the form of a trial of treatment for sacroiliac dysfunction including muscle energy techniques. A referral to a physiatrist was suggested to investigate the piriformis syndrome and to implement a treatment plan for it.
On May 1, 1998, a chiropractor diagnosed left L5/S1 disc herniation, lateral recess stenosis L5/S1 and piriformis syndrome.
On June 15, 1998, a WCB medical advisor suggested a call-in for the assessment of any permanent partial impairment of the claimant's back. The medical advisor also commented that any such impairment would be partially related to the work related injury.
In July 1998, an employment specialist recorded that the claimant had graduated from his business administration course and was receiving job search assistance.
The claimant was assessed on September 10, 1998 with respect to a permanent partial impairment award. Following the assessment, the impairment awards medical advisor noted that the claimant had 55 degrees loss in range of movement of his lumbar spine. This equated to 6.9%. It was the opinion of the medical advisor, that the claimant's pre-existing problems dating back to 1985 played a significant role in limiting the claimant's range of back movements.
On December 1, 1998, the claimant's vocational rehabilitation plan was extended to February 28, 1999, with respect to job search assistance. Beginning March 1, 1999, wage loss benefits would be based on the claimant's earnings or earning capacity, which ever was greater.
The claimant was again examined by the WCB's physiatrist on January 22, 1999. It was the consultant's opinion that the claimant had plateaued with respect to his lumbosacral spine range of movement and symptomatology, which appeared to be mechanical in nature, primarily at the lumbosacral junction. There was no evidence of any lumbosacral nerve root involvement as suggested earlier in the file. The physiatrist agreed that the claimant's pre-existing problems dating back to 1985 were likely playing a significant role in the limitation of range of movement. A functional capacity evaluation (FCE) was suggested to more accurately estimate any residual impairment.
The claimant underwent a FCE on February 25, 1999. The report was then reviewed by the WCB physiatrist on March 11, 1999 and was discussed with a WCB physiotherapist. The physiatrist documented that the FCE suggested minimum values for range of movement and function. The claimant voluntarily restricted on functional testing suggested his actual function was better. The consultant went on to indicate that the exact potential range of movement could not be determined. "On a balance of probabilities, the claimant's current status is primarily related to the pre-existing lumbosacral spondylosis and the affects of ageing and low activity level since 1985." On April 13, 1999, the consultant indicated that his opinion, preventative restrictions were appropriate.
On April 19, 1999, the claimant quit his sales consultant position due to an increase in back symptoms. According to file documentation he was contending total disability.
On May 5, 1999, a WCB adjudicator wrote to the claimant indicating that the WCB would be ending his partial wage loss benefits with 12 weeks notice. Discontinuation of benefits would occur on August 29, 1999. This decision was based on the following:
- the September 1998 review by WCB healthcare personnel that any restrictions would be preventative.
- the January 22, 1999, examination by the WCB's physiatrist who was of the opinion that there was no medical information to support that the claimant was still suffering from myofascial pain syndrome or the compensable injury, again diagnosed as a strain. The consultant recommended preventive restrictions recognizing that if the claimant should return to his pre-accident duties he would likely suffer further back injuries.
- that the claimant had secured employment on a permanent basis effective March 1, 1999 and that the WCB was paying the claimant on a partial wage loss basis since that time.
- section 39(2) of the Workers Compensation Act (the Act) which stated that wage loss benefits are payable "until the loss of earning capacity ends", as determined by the Board.
- the case would be forwarded to the Preventative Vocational Rehabilitation Committee to determine if the claimant was eligible for further benefits and services.
- as the medical evidence supported full recovery from the compensable injury, there was no entitlement to a permanent partial impairment award.
On June 15, 1999, the Preventive Vocational Rehabilitation Committee (PVRC) determined that the claimant was not eligible to receive preventive vocational rehabilitation. In brief, the PVRC determined that the claimant had been provided with transferable skills in an occupation, which eliminated the risk of re-injury. In addition, it was felt that the provision of preventive VR benefits and services would not establish a cost-effective plan or reduce or eliminate future claims.
An appeal submission, dated June 22, 1999, was received from a union representative. The union representative felt that the adjudicator was basing his decision on one report (January 22, 1999) and that he failed to interpret that report correctly. The adjudicator was ignoring any and all previous medical reports and the history on the file. The union representative pointed out that the claimant had a serious work related back injury in 1985, for which he was on workers compensation benefits for approximately two years. He also had a back injury occurring in 1990 with severe increased back pain following the pushing of a meat rack at work. This was followed by further injury in 1991. In the words of the WCB's physical medicine consultant, "There has been continual symptomatogy present in the lumbar sacral spine and left lower extremity".
The union representative contended that any pre-existing condition dating back to 1985 has to be considered as a work related pre-existing condition and was therefore compensable. The claimant had a recurrence of his back problems while employed and had been off work since April 18, 1999. He continues to be under the care of a physician, had completed a six-week physiotherapy program and was presently under treatment at the Pain Clinic. The union representative requested that the WCB recognize the claimant's permanent partial impairment as recommended on September 10, 1998, that the claimant has permanent restrictions that prohibited him from returning to his pre-accident employment and that partial wage loss benefits should be continued beyond August 29, 1999.
On August 13, 1999, Review Office denied the above appeal based on the following factors/opinions:
- in view of the worker's lengthy case along with various prior injuries sustained by the claimant, the worker had in fact achieved recovery from the 1991 compensable injury. The worker's ongoing difficulties are primarily related to his pre-existing, multi level disc degeneration, which, had not been shown to be related to any of the worker's prior compensable accidents.
- the claimant's problem was multi level disc degeneration that was not caused by any of the worker's prior compensable accidents, and in particular the 1985 claim as suggested by the union representative.
- Review Office concurred with the opinion expressed by the orthopaedic consultant to Review Office and the WCB's physiatrist that the compensable injury no longer played a material role in causing the worker's loss of earning capacity. The claimant was therefore not entitled to payment of wage loss benefits beyond August 29, 1999.
- the only issue Review Office was addressing was payment of partial wage loss benefits, as the WCB had not specifically addressed the worker's claim for total disability commencing April 19, 1999.
- when the impairment awards medical advisor assessed the claimant with a 6.9% PPI with respect to his loss in range of lumbar movement, it was noted he attributed this loss in movement to the claimant's pre-existing condition and not the affects of the compensable accident. Review Office believed therefore that the claimant's loss in movement was more likely attributable to the pre-existing condition and not to the effect of this accident. The worker was therefore not entitled to a permanent partial impairment award.
On September 9, 1999, the union representative appealed the Review Office's decision and an oral hearing was conducted. The Appeal Panel also considered a September 23, 1999, report from the Pain Clinic which was submitted as evidence by the union representative.
The issues in this case are whether or not the claimant is entitled to benefits beyond August 29, 1999 and whether or not the claimant is entitled to a permanent partial disability award.
The relevant subsections of the Workers Compensation Act (the Act) are subsections 43(1); 44(1) and 44(2). Relevant WCB policies are 44.90.10., Permanent Impairment Rating Schedule, and 220.127.116.11., Pre-Existing Conditions.
WCB policy on pre-existing conditions is effective for decisions made on or after June 23, 1992. The policy provides that where a worker's loss of earning capacity is caused in part by a compensable accident and in part by a non-compensable pre-existing condition, or the relationship between them, the WCB will accept responsibility for the full injurious result of the accident. The policy goes on to state that where the worker has recovered from the work place accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity and where the pre-existing condition has not been enhanced as a result of an accident arising out of and in the course of employment and the pre-existing condition is not a compensable condition, the loss of earning capacity will not be the responsibility of the WCB.
The claimant is seeking the continuation of benefits after August 29, 1999. His entitlement to benefits would be based on subsection 43(1) which states in part that where temporary total disability results from the injury, the compensation shall be a periodic payment during the continuance of the temporary total disability equal to 75% of the worker's average earnings, subject to prevailing maximums. As well, subsection 44(1) which provides that where a temporary partial disability results from the injury the compensation shall be the same as that prescribed in section 40 payable for as long as the disability lasts. Also, subsection 44(2) provides the compensation rate payable where there is a temporary partial disability.
Issue 1: Whether or not the claimant is entitled to benefits beyond August 29, 1999.
We reviewed all the evidence on the files in respect of both the claimant's current and prior back injuries. These included claims initiated with the WCB in 1972, 1981, 1984, 1985, 1989, 1990, 1991 and 1999. We have also considered the evidence and submissions given by the parties at the hearing.
We find that the evidence on a balance of probabilities supports a finding that the claimant had recovered from his 1991 compensable injury to his lower back as of August 29, 1999. We similarly find that the claimant's current condition and symptoms are related to a pre-existing concurrent multi level degenerative disease of the spine which is not related to the current or prior work related back injuries. In coming to this conclusion we noted the following evidence:
The initial diagnosis for the 1991 injury by the claimant's attending physician was a lumbar strain. In April 1992, an attending rehabilitation and physical medicine specialist diagnosed lumbar disc degeneration with overlying myofascial pain and dysfunction. In May 1993, the claimant was similarly diagnosed by the attending physician as having a recurrence of "lower lumbar ligament sprain (i.e. myofascial syndrome)." The continuity of myofascial pain is confirmed by a variety of specialists both within and external to the WCB on an on-going basis through 1998 and was accepted to be causally related to the compensable injury of 1991. These specialists also note, and diagnostic tests reveal, the presence of an increasingly degenerative back condition that was contributing to the claimant's symptomatology.
With respect to the myofascial pain we note the following evidence:
- the worker was examined by the WCB specialist in physical medicine on April 12, 1996 who documented that the worker had continuing low back pain, mechanical in nature and related to lower lumbar spondylosis with documented evidence of degenerative disc disease. He also stated that there was evidence on file of a lower lumbar spine disc injury with mechanical symptomatology continuously present. He further stated that in his opinion a proportion of the low back pain continued to be related to a regional myofascial pain syndrome but noted improvement in this. He found the worker to be not totally disabled, recommended that the claimant continue with his vocational retraining in business administration and also that the physical restrictions be reviewed in a year.
- the worker was examined on September 2, 1997 by a WCB medical advisor who noted that the claimant's progress in terms of lumbar mobility and pain had plateaued. The medical advisor indicated that the restrictions should not be lifted and were related to a combination of pre-existing and myofascial features. She indicated that the restrictions would not likely be permanent as in her opinion the compensable issues did not constitute a permanent disability and that the restrictions should be re-evaluated in a year.
- in a narrative report dated December 29, 1997 the claimant's attending physician appears to agree with the WCB medical advisors respective assessments of the claimant's low back condition as "felt to be mechanical and related to the lower lumbar spondylosis with documented evidence of degenerative disc disease", and the WCB physiatrist's opinion that the claimant " continued with evidence of regional myofascial pain syndrome involving the left buttock musculature. The attending physician indicates:
- " My role at this point, while Mr. [the claimant] is proceeding with his commitment to his vocational training plan, is purely supportive. I have no definite treatment plan for him at the moment."
- in an examination by a WCB physiatrist on January 22, 1999, the specialist finds no evidence of active trigger points and concludes that the myofascial pain had resolved.
We also note that during the management of the claim there has been considerable attention paid to the role of the pre-existing degenerative back condition. The advocate for the claimant has suggested that the pre-existing condition suffered by the claimant is causally related to the many work related back injuries dating back to 1985. However, with respect to our finding that the claimant's pre-existing degenerative condition is not related to his back injuries, we note the following evidence:
- a CT scan of the lumbosacral spine performed July 4, 1986 to investigate a possible disc prolapse reveals no prolapse recording that " the preliminary lateral scout film is unremarkable. The L3-4, L4-5, and L5-S1 discs were examined. No abnormality is identified."
- a report by an attending rehabilitation and physical medicine specialist dated August 28, 1986 essentially confirms the above on a clinical basis. On examination his report records:
- " Abdominal obesity with a slight increase in his lumbar lordosis. There is a slight curve to the left in A-P viewing. The erector muscles are hard bilaterally with very little tenderness. Range of motion is reduced in flexion secondary to pain. Trendelenberg is negative. He stands easily on his heels and his toes. Straight leg raising is full and Lasegue's is negative. Hip range of motion is full although the patient is not compliant and relaxed. Power, deep tendon reflexes, plantar responses in the lower extremities is normal, as is sensory examination.
This patient has very few objective findings to establish a diagnosis. I do not think there is anything serious such as a fracture of the spine, ruptured disc or nerve root injury. I feel there is a physical component present here, but the emotional and/or psychological component far outweighs the physical complaints."
- a subsequent CT scan of the lumbosacral spine performed on June 18, 1990 reveals early degenerative disease at the L5-S1 level which we note was present in 1986 when compared with the earlier CT scan performed in July 1986:
- " The L3-4 disc is normal. There is a central and left sided disc protrusion at L4-5 which compresses the thecal sac and exiting L5 nerve root.
At L5-S1 there is a posterior osteophyte which contacts the thecal sac and S1 nerve root but there is not significant displacement or compression. The appearance at this disc level is unchanged since 1986.
There is no evidence of spinal stenosis. (emphasis ours)
- we note that an attending neurosurgeon subsequently interpreted the above noted scan as showing " a very mild deformity of the L4-5 disc."
- a subsequent CT scan was performed in April 1991 and was compared to the prior study performed in June 1990. We note that the scan reveals resolution of the disc lesion at L3-4 and slight increase in the degenerative changes. The scan records:
- " comparison is made to the prior study of June 1990. The L3-4 disc remains normal. At L4-5 there has been resolution of the disc lesion. A tiny posterior osteophyte is still present probably associated with a small central bulge of disc material. A left posterolateral osteophyte remains at L5-S1 as before.
Improvement in the disc at L4-5 is noted. There is still a minor central disc bulge with posterior osteophyte at L4-5 and left posterolateral osteophyte at L5-S1."
- X- rays performed on February 19, 1992 reveal further degenerative change in the lumbar spine as well as the upper thoracic spine, an area not involved in the compensable incidents to that date. The x-ray reveals:
- "THORACIC SPINE:
There is prominent degenerative spurring anterior of T2-T3 interspace level. No other significant bone, soft tissue, disc or articular abnormality is observed and alignment is normal.
There are small marginal spurs present at the lower lumbar interspaces anteriorly. No other abnormality is identified. There is a short linear opacity superimposed on the L4-5 disc on the AP projection. This may represent a surgical clip or an extraneous artifact. The S1 joints are intact.
No significant spinal abnormality has been identified."
- x- rays of the lumbosacral spine performed on October 14, 1992 reveal increasing osteoarthritic degeneration. The report states:
- "LUMBOSACRAL SPINE:
There is moderate narrowing of the disc spaces at L4-5 and L5-S1 with associated early marginal lipping. Minor marginal lipping is present at L3-4. There are probably osteoarthritic changes in the facet joints at L5-S1. No other abnormality is identified."
- a WCB physical medicine specialist examined the claimant on January 22, 1999 and concluded that the claimant had plateaued with respect to his lumbosacral range of motion and symptomatology which appeared to be mechanical in nature, primarily at the lumbosacral junction. He states:
- " There is no evidence currently of any residual disc involvement. As suggested in the early file of 1985. As well no new evidence of any lumbosacral nerve root involvement as suggested in the early file. I would agree with the prior medical advisor that the pre-existing problems dating back to 1985 are likely playing a significant role that is in the limitation of range of movement"
- the WCB physical medicine specialist agreed at that time with another WCB medical advisor that a functional capacity examination (FCE) should be carried out to more accurately estimate any residual impairment in the lumbar spine range of movement.
- in a memorandum to file dated March 11, 1999 the WCB physical medicine specialist reviewed the results of the FCE with the WCB physiotherapist and determined that the exact values for range of movement could not be determined as the claimant had voluntarily restricted on testing. The WCB physical medicine specialist concluded that:
- " On a balance of probabilities, the claimant's current status is primarily related to the pre-existing lumbosacral spondylosis and the affects of aging and low activity level since 1985."
- in subsequent memoranda to file dated March 23, April 1 and 13, 1999 the WCB physical medicine specialist indicates that on a balance of probabilities the degenerative changes were primarily related to aging, that the claimant appears to have recovered from his past injuries and that any restrictions necessary would be preventative in nature.
- the WCB orthopaedic consultant was asked to review the file, and in a memorandum to file dated August 10, 1999 indicated that the claimant had pre-existing lumbar spondylosis indicative of multilevel degenerative disc disease, which was causing the claimant's current symptoms and was not itself caused by any of the claimant's prior compensable accidents.
- we note that the claimant has documented obesity, noted in various medical reports since 1985 and find, consistent with the medical documentation, that this can be a
- significant contributing factor to progressive degeneration of the spine, particularly the lumbar spine which supports the greatest proportion of body weight.
The claimant's advocate relied in part on evidence given in a narrative report dated September 23, 1999 by an attending consultant at a Pain Clinic. However we place little weight on this report as we note that the claimant was referred to this specialist by another specialist for a specific purpose. In this regard we note the report states:
- " Dr. [referring specialist] decided to refer him to the Pain Clinic for a trial of facet joint block because of his degenerative facet joint at the level of L4-L5." (emphasis ours).
The specialist goes on to indicate that the claimant reported a 70-80% improvement after the claimant received a series of four facet blocks at the L4-L5 level. We find that this appears to imply that the claimant's symptoms were primarily due to osteoarthritis of the facet joints. We further find the specialist's later conclusion to be somewhat illogical as it appears to suggest that the claimant continues to suffer from the effects of his injury because he continues to suffer from conditions that were pre-existing.
In summary we find that the evidence supports a conclusion, on a balance of probabilities, that the claimant has recovered from his 1991 compensable low back injury as of August 29, 1999 and that any current symptoms are related to a pre-existing and concurrently developing multilevel degenerative disease of the spine which is not causally related to the 1991 or prior work related back injuries. We further find that any further restrictions would be preventative related to the degenerative spinal condition and not as a consequence of the claimant's work related accidents.
Issue 2: Whether or not the claimant is entitled to a permanent partial disability award.
In light of our findings with respect to the first issue we find that the claimant is not entitled to a permanent partial disability award. While we note that the WCB Impairment Awards medical advisor examined the worker and calculated the loss of range of movement at 6.9%, we find that based on the evidence referred to above, on a balance of probability, any reduction in range of motion would be due to the claimant's documented progressive pre-existing condition and not to the effects of any compensable injury which as noted, we find to have resolved.
D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner
Recording Secretary, B. Miller
D.A. Vivian - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 17th day of January, 2000