Decision #16/00 - Type: Workers Compensation
An Appeal Panel hearing was held on December 8, 1999, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on December 8, 1999, December 10, 1999, February 10 and 16, 2000.
Whether or not the claimant has recovered from the effects of the compensable injuries; and
Whether or not the claimant is entitled to payment of wage loss benefits beyond October 4, 1999.
That the claimant has recovered from the effects of the compensable injuries; and
That the claimant is not entitled to payment of wage loss benefits beyond October 4, 1999.
This case was previously the subject of an Appeal Panel hearing on June 19, 1997 to determine whether the claimant was entitled to further benefits after December 19, 1996. A complete background surrounding the circumstances of this case can be found in Appeal Panel Decision No. 178/97, dated August 5, 1997, and will not be repeated in its entirety at this time.
Briefly, the claimant was carrying a box of beef weighing 33 kilograms on November 20, 1995, when he felt a pain in his lower back and left leg. The next day the family physician diagnosed a lumbosacral sprain. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to the claimant commencing November 21, 1995.
Subsequent medical information revealed the following:
- on December 1, 1995, a neurologist noted a history of previous low back pain and hypertension. The neurologist felt that the claimant had two distinct and unrelated problems. One was left meralgia paresthetica due to compression of the left lateral femoral cutaneous nerve under the left inguinal ligament. The second was evidence of a left S1 root lesion.
- on December 19, 1995, the family physician noted osteoarthritis and left sciatica.
- in March 1996, an orthopaedic surgeon commented on lumbar/cervical spine x-rays that were taken on December 27, 1995, a bone scan performed on March 25, 1996, and CT scan and EMG test results. Based on the test results, the orthopaedic surgeon concluded that the claimant was not a surgical candidate and should be treated symptomatically in view of the well-advanced disc degenerative disease. Suggestions were made for weight reduction and to avoid bending.
- on June 13, 1996, a WCB neurology consultant stated the following: "Given the diminished left ankle reflex there is evidence of a previous left S1 nerve root compression syndrome." The consultant was of the opinion that an early return to work as part of his treatment program would be appropriate. There were no restrictions on any activities from a neurological perspective.
- in August 1996, the claimant was seen at the Pain Clinic for treatment.
- on November 7, 1996, a WCB medical advisor expressed his opinion that the claimant had a pre-existing condition, i.e. advanced degenerative joint disease of the spine, with multi-level disc bulging and protrusions characteristic of the condition. Marked obesity and chronic deconditioning was thought to be severely aggravating the underlying condition. The original lumbosacral strain diagnosed on November 21, 1995 had resolved. Current reported symptoms were typical of advanced degenerative joint disease, chronic deconditioning and obesity.
On December 19, 1996, primary adjudication determined that the claimant had recovered from the effects of his compensable accident. It determined that the claimant's current disability was the result of an underlying or pre-existing condition, the progression of which had not been enhanced or accelerated by the accident at work. Wage loss benefits were paid to December 19, 1996, inclusive and final.
In January 1997, a union representative appealed the decision contending that the claimant's pre-existing condition had been enhanced by the compensable injury. This led to the case being considered by Review Office and then to an Appeal Panel hearing that took place on June 19, 1997.
The Appeal Panel ruled that the claimant's musculoligamentous strain and/or aggravation of pre-existing osteoarthritis of the lumbosacral spine had not resolved at the time his benefits were terminated. The Appeal Panel stated that no active attempt on the part of the WCB and the employer was taken to implement the recommendation of a modified return to work program. The Appeal Panel recommended the institution of a modified work program by the WCB in co-operation with the employer in addition to the reinstatement of benefits.
Following the Appeal Panel's decision, the claimant was paid retroactive benefits to December 19, 1996. On August 14, 1997, the claimant advised a WCB adjudicator that he had not returned to work and that his back had not shown improvement. He was terminated from his job as of February 7, 1997, but was told by his union that if he was reinstated there would be a job for him.
In September 1997, the accident employer stated they were willing to accommodate the claimant with alternate work and requested a Functional Capacity Evaluation (FCE) to determine the claimant's work capabilities. On October 9, 1997, a FCE was performed and was reviewed by a WCB medical advisor and a WCB physiotherapist on October 29, 1997. It was their view that the FCE revealed no real objective findings except for deconditioning. There were no real indications to continue with restrictions. X-rays of the left hip were ordered. On November 12, 1997, x-rays of both hips revealed no abnormalities.
On December 10, 1997, a WCB medical advisor examined the claimant and stated there was no basis for permanent restrictions related to the compensable injury. The medical advisor noted that the claimant demonstrated inconsistent non anatomical findings and had degenerative disc disease and obesity.
The claimant was also interviewed at the WCB's Pain Management Unit on March 17, 1998. The medical advisor felt that the claimant qualified for a diagnosis of chronic pain syndrome and it was related to the aggravation of degenerative disc disease. This did not, in the opinion of the medical advisor, preclude the claimant from a return to work.
On June 25, 1998, the claimant advised his vocational rehabilitation consultant that he was ready to try to return to work and he was committed to trying. It was noted that the accident employer was looking for suitable work for the claimant.
On July 14, 1998, Claims Services wrote to the claimant outlining temporary restrictions to avoid heavy lifting, repetitive bending and twisting, prolonged standing, sitting and walking without the opportunity to change position. As of June 26, 1998, the claimant's benefits were being paid based on his participation in a return to work plan arranged between him and his Vocational Rehabilitation Consultant (VRC). If by May 1999, it was determined from medical evidence that claimant was able to return to his pre-accident work, benefits were to be discontinued.
A psychologist assessed the claimant in October 1998, at the request of the WCB's medical advisor for pain management. The psychologist stated that the claimant had made some attempts to increase his activity levels and reduce his concurrent pain, but remained pessimistic about his capacity to return to full-time employment with his pre-accident employer. According to the psychologist, the claimant still saw himself as highly disabled due to organic causes, although he was willing to look at psychological techniques, which can affect his experience of pain. On October 14, 1998, the medical advisor from the Pain Management Unit stated that the claimant should be able to return to work in a graduated fashion.
On October 26, 1998, the VRC confirmed that the employer would not be able to accommodate the claimant with suitable duties. As a result, the claimant was referred to employment services at the WCB for a career planning program and other workshops to assist him with his job search. During the program between February 8, through 16, the claimant identified a number of driving jobs that appeared to be within his capabilities.
The claimant was re-assessed by a WCB medical advisor on June 9, 1999. It was the medical advisor's opinion that there was no objective evidence to indicate that the claimant was still suffering from the effects of his November 20, 1995, compensable injury. There was no objective evidence to support any physical impairment. The absent left ankle jerk was chronic and would not prevent the claimant from returning to work. There were no consistent objective findings to recommend any ongoing restrictions.
In a memo dated June 21, 1999, the VRC documented that the claimant took a buy out package and was no longer employed with the accident employer.
On July 12, 1999, primary adjudication wrote to the claimant indicating that in its opinion, he had physically recovered from the effects of the compensable injury sustained on November 20, 1995, and that any ongoing chronic pain syndrome symptoms did not represent a barrier to a return to work. In accordance with policy 43.10.80, wage loss benefits would be extended for 12 weeks up to October 4, 1999, or a return to work date if sooner. The claimant was offered employment assistance during this 12-week period.
In a letter dated August 19, 1999, the claimant's union representative contended that the claimant was not able to return to his pre-accident employment and that he had not recovered from the effects of the compensable injury. In support, the union representative submitted an August 16, 1999, report from the claimant's family physician.
In the interim, the claimant underwent a second functional capacity evaluation on September 6, 1999 to assess his current work capabilities. The report indicated that the results were inconsistent, as the claimant did not demonstrate full voluntary efforts in the assessment of lifting capacity and grip strength and the testing revealed a degree of deconditioning.
Prior to considering the appeal, Review Office obtained a medical opinion from a WCB orthopaedic consultant on September 30, 1999.
In a decision dated October 1, 1999, Review Office determined that the claimant had physically recovered from the effects of his compensable injuries. It also determined that the claimant's symptoms of chronic pain syndrome were not considered to be a barrier to employment and that there was no entitlement to wage loss benefits after October 4, 1999.
Review Office acknowledged that the claimant had many pre-existing factors in his lumbar spine as well as being overweight that were currently acting to create physical difficulties for the worker. Review Office concurred with the attending physician that the claimant was capable of light duty employment but not his regular work. However, Review Office believed that the worker had recovered from the 1995 accident and that his primary problem at this stage was the pre-existing condition. The diagnosis of somatoform pain disorder was not a barrier to the worker's resumption of employment. Review Office therefore concluded that the primary reason the worker could not resume his pre-accident employment involved the pre-existing conditions and not the compensable injury.
The union representative appealed Review Office's decision and an oral hearing was conducted on December 8, 1999.
The issues in this appeal are whether or not the claimant has recovered from the effects of the compensable injuries and whether or not the claimant is entitled to the payment of wage loss benefits beyond October 4, 1999.
The relevant subsection of the Workers Compensation Act (the Act) is subsection 39(2) which provides for the duration of wage loss benefits and relevant WCB policy is Section 184.108.40.206., Pre-Existing Conditions
In this appeal the worker is contending that he is not recovered from the effects of his work related injury to his low back which took place on November 25, 1995 when he lifted a 33kg box at work at which time he sustained a lumbosacral sprain. The employer has contended that the claimant is recovered from any effects of his work related accident to his low back and that any ongoing symptoms or work restrictions are related to the claimant's pre-existing osteoarthritic spinal condition and that any effects from the work place accident are resolved.
Issue 1: Whether or not the claimant has recovered from the effects of his compensable injuries
We have reviewed all the evidence on file and given at the hearing and find that the evidence supports a finding, on a balance of probabilities, that the claimant is recovered from the effects of his work related injury.
The preponderance of the evidence supports a finding that at the time of the claimant's accident he sustained a musculoligamentous strain, a possible lumbar disc herniation and /or aggravation of a pre-existing condition of the lumbosacral spine. In this regard we note that this case was the subject of a prior decision by an appeal panel in decision no. 178/97, dated August 5, 1997, where the appeal panel granted benefits beyond December 19, 1996 and found as part of their decision with respect to the diagnosis and status of the claimant's compensable injury that:
- "We are of the opinion that the claimant's musculoligamentous strain and/or aggravation of pre-existing osteoarthritis of the lumbosacral spine had not resolved at the time his benefits were terminated.
As a result of this decision no. 178/97, benefits were reinstated from December 19, 1996 until October 4, 1999 and the issue to be considered by the present panel is whether or not the claimant had recovered from the effects of his compensable injury when benefits were subsequently discontinued by the WCB on October 4, 1999.
We find there is evidence on file that the claimant has a moderate to severe degree of multi-level degenerative disc disease and osteoarthritis of his back including his low back and of anatomical areas of the back which were not injured at the time of the compensable event and that the claimant had back problems which pre-dated the compensable injury of November 1995. In this regard we note the following evidence:
- in a report dated December 11, 1995, approximately three weeks after the compensable event, the attending physician when asked to describe any condition not caused by the accident which might be affecting progress indicates "osteoarthritis."
- an attending neurologist examined the claimant on December 1, 1995 and indicates a previous history of low back pain.
- x-rays of the lumbosacral spine performed December 27, 1995 approximately one month after the compensable injury indicated:
"Prominent anterior spurs are noted in the upper region and at the thoroco-lumbar junction."
- x-rays of the dorsal and lumbosacral spine performed March 20, 1996 reveal,
"Dorsal Spine: Degenerative changes are noted especially in the distal dorsal spine with anterior bridging osteophytes.
Lumbosacral Spine: Degenerative changes are again seen with anterior bridging osteophytes."
- a bone scan performed March 25, 1996 revealed "Irregularly increased uptake is seen in the lower thoracic and thorocolumbar junctions. Mildly increased uptake is seen on the right side of L5. These are likely degenerative in nature ."
- a physiotherapy report dated April 17, 1996 records under the heading detailed diagnosis, " severe degenerative disc disease of lumbosacral spine."
- an attending orthopaedic consultant examined the claimant on March 14, 1996 and in a report dated April 9, 1996 records with respect to the diagnostic investigations that the claimant has:
"disc degenerative disease involving all lumbar vertebra, sclerosis and osteophyte formation, ballooning of the L5-S1 mainly. There is gross change from T12 downwards as a whole. X-ray of the thoracic spine also revealed similar type of change at the lower thoracic region which is reasonably well advanced.
Bone scan performed on March 25, 1996 revealed increased uptake at the lower thoracic and thoracolumbar area and the facet joint of the L5 right side. These are all degenerative in nature, as reported by Dr. [radiologist].
CT scan as well as EMG test also was reviewed. No doubt the patient has disc degenerative disease and has a very small left paracentral disc protrusion without any gross displacement of the nerve root. EMG test indicates S1 nerve root irritation on the left side.
In view of the well advanced disc degenerative disease, to my opinion, this patient is not a surgical case and should be treated symptomatically. The patient must lose weight and avoid jobs and activity which gives him symptoms, particularly bending."
- the claimant was examined by a WCB neurologist on June 11, 1996 and in his examination notes records:
"He [claimant] stated initially that he never had any pain before this accident in November 1995 but on further questioning did comment that he had had some problems with his back for years but it was some time ago that he had any time off work with his back."
We also note with respect to the issue under appeal that the evidence reveals consistently throughout this file that the claimant was advised by attending physicians, consulting specialists as well as WCB medical advisors that his weight and general deconditioning were contributing to his problems. We also note that a Functional Capacity Evaluation performed October 14, 1997 revealed inconsistencies and testing revealed a low fitness level to activities.
The claimant was examined by a WCB medical advisor on December 10, 1997 who found that there was no basis for permanent restrictions related to the compensable injury. He stated:
- " Based on the present examination, although there is some evidence of left S1 radiculopathy, there are many exaggerated pain behaviours and inconsistencies throughout the examination. In addition to all the positive Waddell's signs, the claimant demonstrated inconsistent, non anatomical findings. It is difficult to explain on an anatomical basis that movement of the right hip, flexion of the left hip, flexion of the left knee and simple log rolling of legs would aggravate his low back pain. Therefore, in my opinion, there are no consistent objective findings to recommend any going restrictions. It should be noted that the claimant has degenerative disc disease and obesity.
The claimant was examined by a second WCB medical advisor on March 17, 1998 to assess the claimant for chronic pain who indicates that:
- " After a review of the notes I feel this man qualifies for a diagnosis of chronic pain syndrome and it is related to the aggravation of DDD [degenerative disc disease]. This does not, however, preclude a RTW [return to work]."
The claimant was referred to a psychologist by the WCB medical advisor for pain management. We note in a report dated October 5, 1998 the psychologist indicates:
- " in summary Mr. [the claimant] has made some attempt to increase his activity levels and reduce his concurrent pain, but remains pessimistic about his capacity to return to full-time employment with his pre-accident employer. He still sees himself as highly disabled due to organic causes, although he is willing to look at psychological techniques which can affect his experience of pain." (emphasis ours)
The claimant was re-examined by a WCB medical advisor on June 9, 1999 who concluded:
- " Based on the present examination, it is my opinion that there is no objective evidence to indicate that the claimant is still suffering from the effects of his compensable injury on November 20, 1995. There is no objective evidence to support any physical impairment. The absent left ankle jerk in my opinion is now chronic and would not prevent the claimant from returning to work. Therefore in my opinion, there are no consistent objective findings to recommend any ongoing restriction."
A second functional capacity evaluation was performed at the WCB on September 6, 1999 to assess the claimant's current capabilities and we note that the results were not consistent and could not be interpreted as it was reported that the claimant did not demonstrate full voluntary efforts in the assessment of lifting capacity and grip strength and the testing revealed a degree of deconditioning.
The claimant's file was reviewed by the WCB orthopaedic medical advisor on September 30, 1999 who indicated:
- " There is little doubt that the claimant sustained a lumbosacral disc herniation with initially S1 nerve root compromised based on the multiple examinations, reported physical findings and subsequent investigations. This occurred in a spine with pre-existing OA [osteoarthritis] & disc degeneration. It is noted that a subsequent lumbar myelogram March 25, 1997 did not report any evidence of residual herniation with nerve root involvement. He is still left with the preexisting degenerative changes, a weight problem and aging process which are the prime factors acting now and preventing him from returning to his previous work activity." (emphasis ours)
We find, based on a preponderance of the evidence outlined, that the claimant had recovered from the effects of his compensable accident which involved a musculoligamentous strain, a lumbar disc herniation, which had subsequently resolved, and/or aggravation of a pre-existing condition of the lumbosacral spine at the time benefits were discontinued on October 4, 1999. We also find that any current symptoms that the claimant is experiencing are as a result of the claimant's multi-level pre-existing degenerative disc disease and osteoathritic spinal condition. We further find that any restrictions would be preventative in nature as a result of the pre-existing condition and not as a result of the compensable injury of November 20, 1995.
Issue 2: Whether or not the claimant is entitled to the payment of wage loss benefits beyond October 4, 1999.
In light of our finding with respect to Issue 1 we find that the claimant is not entitled to the payment of wage loss benefits beyond October 4, 1999.
Although we have found that the claimant has recovered and therefore has no entitlement to benefits beyond October 4, 1999, we have concerns regarding the level of vocational rehabilitation support received by the claimant. In light of the delay in determining whether or not the claimant could have been accommodated with the accident employer in light duties, in retrospect, it is unfortunate that more proactive rehabilitation measures were not undertaken at that time in order to assist the claimant.
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 February, 2000