Decision #44/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on February 20, 2003, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on February 20, 2003 and again on April 3, 2003.

Issue

Whether or not the claimant is entitled to wage loss benefits beyond July 12, 2002.

Decision

That the claimant is entitled to wage loss benefits beyond July 12, 2002.

Decision: Unanimous

Background

In August 2001, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report a right lower back injury that occurred on August 14, 2001, during the course of his employment as a baker's helper. A Doctor's First Report for an examination on August 15, 2001, reported a diagnosis of lumbar mechanical back strain. The claim was accepted by the WCB and benefits were paid accordingly.

The attending physician and treating physiotherapist kept the WCB apprised of the claimant's back condition status. On November 21, 2001, the claimant underwent a CT scan of the lumbosacral spine and the results revealed the following:
"…No abnormality seen at L3-L4. At L4-L5 and L5-S1 there is mild posterior bulging of the intervertebral discs. There is some hypertrophy of the ligamentum flavum as well. There is no evidence of spinal stenosis or neural foraminal stenosis. Nerve root compression is not suspected. There is evidence of facet arthropathy at L5-S1 as well."
On January 24, 2002, a WCB medical advisor reported that the claimant had some ongoing midline pain in the lumbosacral region. Neurological examination was normal and dural tension signs were negative. There was no significant myofascial involvement. There was some facial plethora noted along with a fine resting tremor of the upper and lower extremities, increased ankle clonus bilaterally and a diffuse hyperreflexia bilaterally. The medical advisor felt that the claimant could return to modified duties with physical restrictions and that the claimant may require a lumbar stabilization program.

Following consultation with a WCB medical advisor on March 26, 2002, primary adjudication advised the claimant that he was capable of resuming work on a graduated return to work basis starting April 15, 2002. By May 12, 2002, it was anticipated that the claimant would be capable of resuming his full regular duties.

In a report dated April 23, 2002, the attending physician noted that the claimant experienced a significant increase in his lumbar pain and stiffness since his return to work on April 15, 2002. The physician felt that the duties assigned to the claimant during his first week at work were totally inappropriate and that the return to work program would essentially fail.

In a report dated May 11, 2002, a physical medicine and rehabilitation specialist advised the attending physician that the claimant's symptoms were much more pronounced with activity and especially repetitive bending. The specialist felt that the claimant may benefit from formal acupuncture treatment and that he was scheduling a diagnostic/therapeutic zygapophysial joint injection, which was currently being booked six months down the road.

Following consultation with a WCB medical advisor on June 17, 2002, primary adjudication informed the claimant that it was of the opinion that the effects of his work injury had now resolved and that his ongoing symptoms were related to his pre-existing back condition. Hence, there were no further restrictions on his work activities or further medical treatment required with respect to the effects of his August 14, 2001 work injury. In light of this decision, compensation benefits were paid to July 12, 2002 inclusive and final. On September 10, 2002, the claimant's union representative disagreed with this decision and the case was forwarded to Review Office.

In a decision dated November 8, 2002, Review Office concluded that the claimant had, on a balance of probabilities, recovered from the effects of the injury he sustained on August 14, 2001 and that he was not entitled to wage loss benefits beyond July 12, 2002. Review Office based its decision on the following factors: "….the lack of a specific initiating incident for the worker's complaints, the accepted diagnosis of a muscular strain, the length of time elapsed since the onset of symptoms and the presence of degenerative changes in the worker's spine confirmed by a CT scan."

On February 20, 2003, an oral hearing was held at the Appeal Commission as the union representative disagreed with Review Office's decision. Following the hearing and discussion of the case, the Panel requested additional information be obtained from the treating physical medicine and rehabilitation specialist concerning a joint injection that the claimant underwent in September 2002. On March 18, 2003, all interested parties were provided with a letter from the specialist dated March 18, 2003, and were asked to provide comment. On April 3, 2003, the Panel met to render its final decision with respect to the issue under appeal.

Reasons

As the background notes indicate, the claimant sustained a work-related low back injury on August 14th, 2001. Patient history disclosed that the claimant had occasional mild low back pain with activity prior to the compensable incident. The claimant was initially diagnosed as having suffered a lumbar mechanical back strain. WCB medical advisors acknowledged that a low back musculoligamentous sprain/strain was consistent with the mechanism of injury and the most probable diagnosis. A CT scan of the claimant's lumbosacral spine, which was performed several months following the compensable injury, revealed evidence of facet arthropathy at L5-S1. At the time when the claimant's benefits were terminated, WCB medical services concluded that the claimant's ongoing low back complaints were likely caused by the pre-existing degenerative changes in his back and that his musculoligamentous injury had resolved.

Prior to the termination of compensation benefits, the treating physician referred the claimant to a physical medicine and rehabilitation specialist for consultation. Initially the specialist recommended a conservative course of treatment involving prescribed medication to be taken twice daily. Should this medication not be effective, then he recommended "a fluoroscopically-assisted zygapophysial injection". On May 11th, 2002, the specialist reported to the treating physician that the medication had not improved the claimant's back pain and that he would be booking a diagnostic/therapeutic zygapophysial joint injection, which would take place in approximately six months time. The specialist further reported that "While there are degenerative changes noted at the L5-S1 zygapophysial joints on his x-rays [the claimant's], there is little correlation between those findings and an individual's symptoms."

We contacted the physical medicine and rehabilitation specialist prior to our deciding this case to inquire as to when the injection took place and if it helped to resolve the claimant's condition. In a response dated February 28th, 2003, the specialist responded as follows:
    "I performed a right L5-S1 zygapophysial joint injection under fluoroscopic assistance on September 5, 2002. The purpose of the injection is partially diagnostic and partially therapeutic. This procedure was performed in the management of Mr. [the claimant's] low back pain. The procedure was to assess the relative contribution of the right L5-S1 zygapophysial joint to his pain complaints, as well as potentially provide improvement in his symptoms. Based on his reported response, there was some initial and persisting benefit, which suggests that the right L5-S1 zygapophysial joint was, at least in part, a source of his low back pain."

We find based on the weight of evidence that the claimant's low back symptoms are not, on a balance of probabilities, related to a pre-existing degenerative back condition. The physical medicine and rehabilitation specialist treated the claimant's musculoligamentous difficulties by way of injection. The claimant's evidence at the hearing was that this treatment modality was successful and therefore strongly suggesting that his condition was in fact musculoligamentous in nature. Accordingly, we further find that the claimant is entitled to wage loss benefits beyond July 12th, 2002.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 1st day of May, 2003

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