Decision #126/02 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on October 1, 2002, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on October 1, 2002.Issue
Whether or not the worker is entitled to wage loss benefits beyond August 24, 2001.Decision
That the worker is not entitled to wage loss benefits beyond August 24, 2001.Decision: Unanimous
Background
In a Worker’s Accident Report dated August 9, 2001, the claimant reported a lower back injury with the date of accident being July 30, 2001. The report stated, “It is the second time this year that she has seen the Chiropractor. She knows that this is work related because she has been having this problem for the last 4 years. She could not even lift a piece of paper and in her job as a Family Support Worker she has to lift children. Her lower back was inflamed. She has done therapy over the years and has not seen a Chiropractor until this year. She has never put in a claim before and her lower back pain just keeps coming back. She has been doing this job for the last 9 ½ years.”.In a letter from the employer dated August 9, 2001, it was noted that on July 30, 2001, the claimant contacted the coordinator and asked for sick time to cover July 30th as her back was bothering her. The claimant stated that her back had been bothering her on Friday but got much worse over the weekend and was excruciating by Monday. On August 1, 2001, the claimant advised the coordinator that her chiropractor said this was a Workers Compensation Board (WCB) claim. When asked when her back problems started, the claimant replied “many years ago”. The claimant had no explanation for the sudden onset this time but rather indicated that it just hurt all of the time but got worse on Friday July 27th. The claimant speculated that this might have been caused by lifting children.
On July 30, 2001, a chiropractic report diagnosed the claimant with an acute QL/multiple strain with posterior joint dysfunction, L5-S1 and low back pain with left sided leg pain. The claim was accepted by the Workers Compensation Board (WCB) and wage loss benefits were paid to the claimant effective July 31st to August 26, 2001, inclusive and final, as the claimant had returned to work. The WCB also accepted responsibility for chiropractic treatment for a maximum period of 6 weeks, or to September 10, 2001 inclusive.
On December 18, 2001, the claimant called the WCB to advise that she was still having problems with her back since the summer. On December 17, 2001, the claimant went to get up and her back felt tight and the front of her left leg was numb. A chiropractor was seen for treatment on December 18, 2001 and she was told to remain off work.
In a further telephone conversation with a WCB adjudicator on December 28, 2001, the claimant said she was getting up off of a chesterfield in a client’s home on December 17, 2001 and she felt weird and walked funny. She managed to finish her shift but her left lower leg was numb. This was the first time she experienced numbness in her lower leg. The claimant related her back problems to her work activities.
On December 31, 2001, a general practitioner indicated that the claimant complained of a painful back. Treatment included Vioxx, heat, massage and chiropractic treatment.
The claimant was assessed at the WCB’s offices on January 25, 2002 by a WCB chiropractic advisor. Under “Summary and Recommendations”, the chiropractor stated that the claimant did have some persisting low back problems, probably related to posterior facet joint irritation. He felt, however, that the claimant was probably able to return to work with restrictions. As to whether or not the claimant’s ongoing problems were work related, the chiropractic advisor considered the following:
- the claimant had back pain since at least 1991;
- the claimant had a serious genu valgum problem which caused altered gait and other postural changes.
- a relatively inactive lifestyle due to the genu valgum problem.
- obesity
- the nature of her work which requires her to lift small children.
In a letter dated February 4, 2002, primary adjudication 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. The WCB would, therefore, not accept responsibility for the claimant’s time loss from work beyond August 24, 2001 or chiropractic treatment beyond September 24, 2001. On February 9, 2002, the claimant appealed this decision to the Review Office.
On March 1, 2002, Review Office determined that no further wage loss benefits were payable to the claimant beyond August 24, 2001. Review Office was of the opinion that the claimant had underlying conditions which predisposed her to back pain and that the sofa incident occurring on December 17, 2001, was simply another aggravating influence on her susceptible lumbar spine. Review Office concluded that there was no relationship between the incident of December 17, 2001 and the claimant’s back condition of late July 2001. On July 11, 2001, a union representative, acting on behalf of the claimant, appealed Review Office’s decision and an oral hearing was arranged.
On October 1, 2002, an oral hearing was held at the Appeal Commission, after the conclusion of which the Panel decided that additional information was required from the claimant’s treating physician. A response from the treating physician was later received and forwarded to the interested parties for comment. On November 5, 2002, the Panel met to render its final decision as to the issue under appeal.
Reasons
An x-ray of the claimant’s lumbosacral spine was taken on February 15th, 2002. The x-ray revealed degenerative changes with small anterolateral osteophytes as well as degenerative changes in the apophyseal joints, which are basically consistent with osteoarthritis. In a letter to the Appeal Commission dated October 11th, 2002, the attending physician clearly outlines that the claimant’s symptoms are due to osteoarthritic changes in her lumbosacral spine and that these symptoms are longstanding. “In summary, Mrs. [the claimant] has osteoarthritic changes in her lumbosacral spine which are symptomatic. The symptoms are longstanding.”We find based on the weight of evidence that the claimant’s current condition is not, on a balance of probabilities, work related. Further, there is no evidence to suggest that this condition had either been aggravated or enhanced as a consequence of her work duties. Accordingly, the claimant is not entitled to wage loss benefits beyond August 24th, 2001.
Panel Members
R. W. MacNeil, Presiding OfficerA. Finkel, Commissioner
W. Leake, Commissioner
Recording Secretary, B. Miller
R.W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 14th day of November, 2002