Decision #29/01 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on January 24, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on January 24, 2001.

Issue

Whether or not, as of April 2, 1999, the claimant had recovered from the effects of her compensable injury.

Decision

That as of April 2, 1999, the claimant had recovered from the effects of her compensable injury.

Background

During the course of her employment as a bakery clerk on August 8, 1998, the claimant was standing on top of some boxes looking for muffin containers when she overreached and felt a sharp pain in her lower back.

The claimant has a prior claim with the Workers Compensation Board (WCB) for a work related back injury that occurred on September 19, 1997. The diagnosis rendered by the treating chiropractor was an L3-4 subluxation/sprain. Time loss benefits were issued between September 20th and 30, 1997 and the claimant returned to work with restrictions to avoid heavy lifting and working long hours.

With respect to the August 8, 1998 injury, the claimant sought medical treatment from her attending physician and a chiropractor. On August 10, 1998, the attending physician diagnosed the claimant with an acute strain of the lumbosacral spine. On August 11, 1998, the claimant sought treatment from a chiropractor and was diagnosed with a lumbopelvic sprain injury. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on August 9, 1998.

Chiropractic x-rays were undertaken of the lumbosacral spine dated August 12, 1998. The findings revealed thinning of the L5 disc with posterior wedging. The facets at L2-3, 3-4, 4-5 and L5-S1 all appeared symmetric. There was very marginal osteophytic lipping on the anterior/superior of the body of L5.

On September 9, 1998, the claimant was assessed by a WCB chiropractic consultant and by a WCB orthopaedic consultant on October 26, 1998. The orthopaedic consultant noted that the claimant had surgery to both knees about 25 years ago. Following his examination, the consultant commented that the claimant likely had patellofemoral arthritis as a consequence of her previous subluxations, her dislocations of the patellae and her subsequent surgery. It was noted that the claimant had slight degenerative changes in her lumbar spine. The consultant was of the view that the claimant could tolerate light work and that she would have ongoing problems with her back and knees with any strenuous work. Restrictions were outlined with respect to the degenerative changes in the back region and for her knee condition.

On January 13, 1999, the claimant was informed by Claims Services that based on file information she was capable of commencing a graduated return to work program with a goal to increasing her work hours by 1 hour per week until she reached her normal pre-accident hours. The claimant was also informed that her case would be considered by the preventative Vocational Rehabilitation Committee.

In February 1999, the claimant was in the process of completing her graduated return to work program when she experienced further back difficulties. In a sworn statement dated March 11, 1999, the claimant described her difficulties, in part, as follows:

    "During the three shifts prior to the 19th, I was trying as hard as I could. It was my first week of 4 hour shifts and I found it strenuous. There was no time that I was symptom free. During the three days prior to February 19, 1999, my back just started to get worse. I was experiencing sharp pains in my back when reaching or lifting for things. After my shift, my back would be very painful and I would apply a cold pack. By the time the morning shift of the 19th had come my back was very painful and I ended up leaving after 3.5 hours because of the pain."

A progress report was received from the attending physician dated February 19, 1999. The physician noted objective findings of muscle spasm, locking of the LS spine in lordosis which would not move to extension and flex to touch mid thigh. The physician indicated that the claimant was totally disabled effective February 19th for one week duration.

On March 18, 1999, the case was reviewed by a WCB orthopaedic consultant. The consultant was of the opinion that the claimant re-aggravated her back condition because of her knee problems.

A progress report was received from the attending physician dated March 22, 1999. He found objective findings of full range of back motion, hitching to neutral from full flexion and paravertebral muscle spasm was seen and palpated. He felt that the claimant's general prognosis was poor in the current workplace and suspected that she would never be capable of heavy work again.

In a memorandum dated March 25, 1999, the WCB's orthopaedic specialist outlined his opinion that the exacerbation of the claimant's symptoms were related to her pre-existing knee pathology and degenerative changes in her spine and that they were not related to the work injury of August 12, 1998.

In a letter dated March 25, 1999, the claimant was advised that the WCB accepted responsibility for her time loss from work beginning February 19, 1999, however, no responsibility would be accepted for her claim after April 1, 1999. It was the opinion of Claims Services that the claimant sustained a muscular strain to her lower back in August of 1998 and that pre-existing spondylosis was found in the lumbar spine. The lumbar spondylosis in conjunction with her non-compensable patellofemoral osteoarthritis may result in exacerbations of her low back symptoms. The ongoing problems and potential for further difficulties were not related back to the compensable back strain of August 1998.

On June 9, 1999, the claimant was advised that her case did not meet the preliminary criteria for consideration of preventive vocational rehabilitation assistance as her past claim history did not establish nor did it meet the pattern of risk required in the WCB's preventative vocational rehabilitation policy.

In an appeal submission to Review Office dated July 26, 2000, a union representative argued that on a balance of probabilities, the claimant's back problems were directly related to the work she did in the bakery department and to her previous and most recent compensable injuries. The union representative stated there was a difference of medical opinion between the WCB's orthopaedic consultant and the claimant's treating physicians as to the reasons for the claimant's ongoing back problems. The union representative referred to medical reports from the treating physicians dated December 22, 1999, July 7, 1999 and November 9, 1998 in support of her position.

On August 25, 1999, Review Office determined that as of April 2, 1999, the claimant had recovered from the effects of the strain injury of August 9, 1998. Review Office concluded that the opinion of the WCB orthopaedic specialist was reasonable and could find no medical evidence to substantiate that the claimant was still feeling the effects of a soft tissue strain on April 2, 1999, from the August 8, 1998 injury. On October 4, 2000, the union representative appealed Review Office's decision and an oral hearing was arranged.

Reasons

This case is about a worker who sustained an injury to her back in August 1998, while at work. She had also suffered a similar injury eleven months earlier. Both accidents were accepted by the WCB as compensable injuries. She continues to suffer back pains; whether as a result of the work related injury was to be determined by the appeal panel.

The panel met to consider the claimant's appeal of a decision by the Review Office, dated August 25, 2000. That decision denied a request for reconsideration of an earlier adjudicative decision.

One issue was to be determined in this appeal: whether or not, as of April 2, 1999, the claimant had recovered from the effects of her compensable injury. For the appellant to succeed, the panel would have to determine - on a balance of probabilities - that her physical condition, since April 2, 1999 and continuing to this day, is causally linked to her compensable injury.

At the hearing, the Panel heard testimony from the claimant, who was represented by a union representative, as well as from a representative of the employer.

We concluded that the claimant had recovered from her compensable injury as of April 2, 1999. In coming to this conclusion, we had to consider a number of matters, including the compensable injury, itself; the role a previous workplace injury might have played in her recovery from the injury under appeal; and the impact, if any, of a pre-existing condition on the relevant injury.

As noted above in the "background", the claimant injured her back while reaching above her head for some boxes. Her injury was diagnosed, by her family doctor, as an acute strain to her lumbosacral spine. In the normal course, this type of injury should heal within 4 - 6 weeks. At the time of her initial treatment, the doctor felt she should be able to return to work in 3 weeks. She continues to have problems with her lower back to this day.

It was up to the panel to decide whether or not her current, ongoing symptoms are causally related to the injury of August 1998.

With respect to the August 1998 injury, we found little support in the medical evidence to conclude that her current symptomatology results from this workplace accident. It was argued before us that only one of six doctors who examined the claimant concluded that her problems were not related to her compensable injury. In our review of the file, we did not find this to be so clear.

There is no argument with the fact that the claimant continues to suffer from back pain. But, from the medical file, we find that doctors are at a loss to explain why she continues to have symptomatology from the back strain she suffered in August 1998.

The Board Orthopaedic Consultant did conclude that her problems were related to a pre-existing condition, namely her knee problems. Another doctor expressed his surprise "that the Workers Compensation Board has attributed your ongoing back difficulty to pre-existing degenerative changes in your spine and not to the injury you sustained at work." But, two other doctors, who supposedly support the claimant's position, describe her current condition as "mechanical/degenerative" in nature. (Our emphasis.)

We have concluded that, on a balance of probabilities, the preponderance of evidence supports the premise that her back condition, beyond April 1, 1999, is not causally related to her August 1998 workplace injury.

It was argued before the panel, by the claimant's representative that, at the time of this injury, the claimant had not fully recovered from the effects of a previous work related injury, also to her lower back, which she suffered in September 1997. This injury had been accepted as compensable. She returned to work ten days after the incident. While it was not an unreasonable argument to make, there is little medical support for this premise; only brief comments by her family physician on a couple of his reports.

On review of the medical information on file, we note that the claimant had been diagnosed with a lumbosacral sprain/strain, and was successfully treated with chiropractic adjustments until October 10, 1997. There is no evidence of any further medical treatment of her back after that date, suggesting that she had fully recovered from the effects of that injury.

The panel has concluded that there is no evidence to support that this previous injury played any significant role in her inability to recover from the August 1998 injury.

We then considered the medical evidence in respect of other pre-existing conditions. WCB Policy 44.10.20.10 provides as follows:

"Where 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 an accident 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."

In applying this policy to this claim, it is incumbent on the panel to determine that, after April 1, 1999, any loss of earning capacity is due to a pre-existing condition of the claimant and not to her August 1998 accident.

We carefully reviewed the medical evidence in the file. (The relevant parts of this are summarized above in the "Background" portion of this decision.)

We note that the claimant has a long history of back problems. One medical report points out that, at the age of 12, she suffered a relatively serious back injury. In her testimony before the panel, the claimant admitted a number of minor problems with her back, often caused by exercising in a gym, for which she frequently sought chiropractic treatment.

We also note that the claimant has had major knee surgery. The Board Orthopaedic Consultant is of the view that ongoing patellofemoral arthritis is likely playing a significant contributory role in the claimant's condition: in order to protect her knees, she does not squat and lift with her knees; rather, she bends over to lift, aggravating her back.

We are of the opinion that there is sufficient evidence to support a conclusion that - on a balance of probabilities - pre-existing conditions are responsible for the claimant's current, ongoing problems with her back. Thus, any loss of earning capacity, beyond April 1, 1999, is not due to the compensable injury.

Accordingly, the appeal is not allowed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 21st day of February, 2001

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