Decision #135/02 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on November 19, 2002 at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on November 19, 2002.Issue
Whether or not the worker is entitled to wage loss benefits after May 5, 1998.Decision
That the worker is entitled to wage loss benefits after May 5, 1998.Decision: Unanimous
Background
The claimant was employed by a water well drilling company as a driller's assistant. While at work on October 30, 1997, the claimant was injured when a drilling cable snapped causing him to fall backward off an 18-inch high drilling platform onto the ground, landing on his back. Over the next three days the claimant's symptoms of soreness in his lower back increased. On November 3, 1997, the claimant was examined by a chiropractor, who noted that the claimant had difficulty walking, complained of lower back pain, as well as pain, numbness and muscle spasms down his right leg.The claimant was examined by his family physician on November 6, 1997 for continued complaints of sharp pain to his lower back. In the doctor's progress report to the Workers Compensation Board ("WCB"), the physician noted muscle inflammation and diagnosed the injury as myofascial pain to the lower back and referred the claimant for physiotherapy. The report noted that the claimant was only capable of sedentary work. The WCB accepted the claim and wage loss benefits were paid to the claimant commencing October 31, 1997.
Over the next six-month period, the claimant was regularly assessed by his family physician for continued low back pain preventing him from returning to his regular work activities. The claimant was referred to a physical medicine and rehabilitation consultant, who, in his report dated January 13, 1998, assessed the claimant as suffering from low back pain that could be caused by myofascial pain in the right gluteus medius muscle and left L5 facet syndrome. The claimant was seen by his physician on January 27, 1998 for complaints of pain with moving, walking, sitting and bending. The physician concluded that the claimant was unable to return to his regular work duties. An x-ray report of the claimant's lumbar spine dated January 28, 1998 showed normal joints, no fractures and did not indicate any degenerative changes such as narrowing of disc spaces. A second x-ray report dated February 6, 1998 noted "L4-L5 disc narrowing likely degenerative in nature." The claimant was assessed by a second physical medicine and rehabilitation specialist on March 4, 1998. This specialist noted complaints of pain in the claimant's right leg on bending and tenderness in the L4-5 disc area. The specialist was of the opinion that the claimant may have some segmental or facet irritation and recommended an aggressive physical therapy program with likely return to work within 3 to 4 weeks. On March 12, 1998, the claimant was again assessed by the first physical medicine and rehabilitation consultant, who noted that the claimant's low back pain had not improved substantially, noting tenderness in the gluteus medius muscles, tenderness in the right and left L5 facet areas and soreness over the right L5 level. This consultant assessed the claimant as suffering from low-back pain, which may be facet in origin at the L5 level bilaterally. A modified exercise program was recommended.
The claimant was referred to a WCB physical medicine and rehabilitation consultant who assessed the claimant on March 19, 1998. The WCB consultant noted that there was prior back symptomology in the claimant's file history. The consultant concluded that there was little to find on examination "with a full and apparently pain-free range of movement". The consultant was of the opinion that the claimant likely sustained an aggravation of low back pain related to some pre-existing degenerative changes present in the lumbosacral spine and a possible muscle strain and that any aggravation of pain had resolved. The WCB consultant recommended that the claimant begin a return to work program.
On April 1, 1998, the claimant attended at the office of a physician, complaining of severe back pain. In his WCB progress report dated April 3, 1998, the physician noted loss of lumbar lordosis, spasm of the sacrospinalis muscle and loss of rotation/flexion of the back. He further noted that the claimant was not able to work. When seen again on April 13, 1998, the physician reported that the claimant's pain had improved but would increase if he performed any lifting or bending.
On April 28, 1998, a WCB adjudicator wrote to the claimant to advise that full wage loss benefits would be paid to May 5, 1998 inclusive. In concluding that the claimant had recovered from the effects of the compensable injury and was fit to return to his pre-accident duties, the adjudicator referred to the opinion of the WCB consultant that the claimant likely sustained an aggravation of low back pain related to pre-existing degenerative changes in the lumbosacral spine and that there appeared to be complete resolution of this aggravation.
The claimant was assessed on May 5, 1998 by the physical medicine and rehabilitation consultant, who noted in his report that the claimant's back pain had not improved with exercise. The consultant requested a further x-ray and referred the claimant to the Pain Clinic for a facet block. The x-ray results dated May 6, 1998 concluded that there was no change from the first x-ray taken in January 1998 and that there was no significant lumbar disc narrowing. On May 26, 1998 the consultant assessed the claimant and noted in his report that the claimant's back pain continues to wax and wane in it's severity with periods when the claimant cannot get up for most of the day. The consultant's assessment was of mechanical low-back pain, which may be caused by a bilateral L5 facet syndrome. The consultant recommended continued exercise and assessment at the Pain Clinic. On June 26, 1998 the consultant completed a WCB Physical Capacities Evaluation form in which he noted that the claimant can lift or carry no more than 10 lbs. and suggested that a functional assessment be performed. On August 11, 1998, the claimant was assessed by an anesthetist at the Pain Clinic. In her report dated August 25, 1998, the anesthetist noted that the claimant's lumbar spine demonstrated significant paraspinal muscle spasm, that he found straightening from a flexed position to be painful and that palpation revealed tenderness at the L4 and L5 facet joints. The anesthetist performed facet joint injections, which provided some pain relief.
On November 30th and December 1st, 1998, the claimant completed a two-day functional capacities evaluation performed by the Wellness Institute. The results of this evaluation, contained in a report prepared by a physiotherapist, noted objective signs of increased pain or difficulty performing tests involving elevated work, forward bending, standing and kneeling and concluded that the claimant is capable of performing only light work with restrictions of lifting 20 lbs. occasionally and 10 lbs. frequently. According to the physiotherapist, the claimant does not meet his job demands of a water well driller, which work requires heavy manual labour such as shoveling and carrying sandbags weighing up to 100 lbs. each.
In March 1999, the claimant's employer appealed the adjudicator's decision to the Review Office indicating that the claimant was unable to return to work due to his injury. On March 19, 1999, the Review Officer determined that the weight of evidence did not establish a reasonable or probable cause and effect connection between the claimant's accident at work in October 1997 and his ongoing low back complaints after May 5, 1998.
The claimant continued to seek treatment for low back pain from his family physician. The claimant was referred to an orthopaedic surgeon. On July 13, 1999 a CT scan was performed which revealed a disc herniation at the L5-S1 level. In the family physician's report dated September 21, 1999, it is noted that the claimant continues to have disabling pain in the low back and that physiotherapy, exercises, pain killers and facet blocks have not been successful. According to the report, the claimant is not expected to be able to return to work prior to surgical treatment for his herniated disc.
Based on the above information, the employer asked the Review Office to reconsider its previous decision. The Review Office requested that a WCB orthopedic consultant review the file and provide answers to questions outlined in a memorandum dated January 20, 2000. In a memorandum dated February 17, 2000, the WCB orthopaedic consultant provided answers to questions asked as follows:
- In answer to the question regarding the diagnosis of the worker's current back problem, the consultant advised that the claimant appeared to have degenerative disc disease with an associated lumbosacral disc herniation;
- In answer to the question of whether there is a relationship between the worker's back problems and the compensable injury in October, 1997, the consultant advised that there had been a continuity of symptoms in regard to the lower back since the compensable accident, that the problem appeared to be primarily one of discogenic low back pain, and that it would be possible to injure a disc in the described mechanism of injury.
- In answer to the question of whether there is evidence of a pre-existing condition that may be contributing to the ongoing disability and if so, has it been aggravated or enhanced as a result of the compensable injury, the consultant advised that degenerative disc disease would be a pre-existing condition and that this condition would be aggravated or enhanced as a result of the herniation. The consultant further advised that if the claimant is continuing to experience ongoing symptoms, the aggravation has not resolved.
In July 2002, an appeal of the Review Office decision was filed. On November 12, 2002, counsel for the claimant provided the Appeal Commission with additional medical reports covering the period from April 2001 to February 2002. On November 19, 2002, an oral hearing was held at the Appeal Commission.
Reasons
Section 39 of the Workers Compensation Act provides that where an injury to a worker results in a loss of earning capacity, wage loss benefits are payable until the loss of earning capacity ends. The claimant in this case suffered a low back injury that was accepted by the WCB as a compensable work related injury. The issue for this panel to determine is whether, on the balance of probabilities, the compensable injury is continuing to cause a loss of earning capacity. The panel has unanimously determined that it is.At the hearing, the Panel heard evidence from the claimant concerning the onset of severe low back pain radiating down his right leg following his fall on October 30, 1997. The claimant testified that his symptoms have continued since that time except for a brief period following surgery for a herniated disc in May 2000, when his symptoms improved for a short period. However, within a few months after surgery, the claimant's low back pain returned, with shooting pain and numbness in his right leg. He testified that he continues to be unable to do any heavy lifting or to sit or stand for any length of time without feeling increased soreness in his back.
The claimant's wife testified that prior to the accident her husband was active at home and in good health, that he liked his work and often worked extra shifts and on weekends. She described how his condition changed following the accident, when he was stooped and unable to straighten his back for a number of weeks and has had difficulty standing or sitting for any length of time since.
The panel also heard evidence from a director and part-owner of the employer's group of companies, who testified that the claimant had been employed with them since 1981 and was considered an exceptionally hard worker who often worked extra hours, always showed up on time, never complained, clearly liked his job and was appreciated by the other workers. The employer was of the view that if the claimant could work he would and that the claimant being "a man of few words" might not have adequately expressed the nature of his symptoms to an examining physician. The employer described the heavy physical demands of the claimant's job and indicated that their company has no light duty work for the claimant to perform.
The panel noted that the claimant's WCB file history includes two previous back problems, which occurred in 1985 and 1991. The panel was also provided with additional medical reports prior to the hearing. In the report of the claimant's orthopaedic surgeon, dated April 29, 2001, the surgeon is of the opinion that the October 1997 accident led to the claimant's herniated disc and that there was no pre-existing condition affected by the accident. In the report of the physical medicine and rehabilitation consultant dated April 27, 2001, the consultant is of the opinion that the claimant's previous back discomfort in 1991 had completely resolved and is not related to his current back pain. The consultant further opines that the claimant's current low back pain is causally connected to the 1997 accident. In the report from the claimant's family physician dated April 29, 2001, the physician is also of the view that the previous 1985 and 1991 incidents of muscle strains do not represent a pre-existing back condition. He notes that the claimant has continued to have periodic flare-ups of back pain since his surgery and is not expected to achieve his pre-injury status or to ever be able to return to heavy work.
After taking into account all of the evidence, the panel is satisfied, on a balance of probabilities that the claimant's loss of earning capacity was caused by the compensable work related injury which occurred on October 30, 1997, the effects of which have never resolved. The panel notes that the claimant's symptoms have continued and remained consistent since the accident. Except for the WCB consultant who examined the claimant in March 1998, all of the health professionals who examined the claimant before and subsequent to that time noted continuing symptoms of low back pain radiating down the right leg. After hearing the claimant's evidence, the panel believes that it is likely that the claimant's symptoms may have been less severe on the date he was examined by the WCB physician, and the reports of the examining physicians in April and May 1998 confirm that the claimant had not recovered from the effects of his injury. The panel also notes that the WCB consultant who reviewed the file in February 2000 at the request of the Review Office, expressed the opinion that the accident in 1997 could be the cause of the claimant's low back pain and given his ongoing symptoms, the claimant's condition had not resolved.
With respect to the existence of a pre-existing condition, the panel notes that two of the three x-ray reports failed to show any disc narrowing which would suggest a pre-existing degenerative condition. Further, the evidence of two previous back problems in 1985 and 1991, which were diagnosed as muscle strains, resolved after a few days. The reports from the claimant's family physicians since 1997, his orthopaedic surgeon and the physical medicine and rehabilitation consultant, are all of the view that the claimant's condition is related to the 1997 accident and not to a pre-existing condition. The panel is of the view that the preponderance of evidence indicates that the claimant's loss of earning capacity is not caused in whole or in part by a pre-existing condition.
The panel is satisfied that the claimant's loss of earning capacity is continuing and is caused by the compensable work related injury, which occurred on October 30, 1997. The claimant is therefore unable to return to his pre-injury job duties and is entitled to benefits beyond May 5, 1998.
Panel Members
M. Thow, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
M. Thow - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 29th day of November, 2002