Decision #86/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on June 26, 2003, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on June 26, 2003.

Issue

Whether or not responsibility should be accepted for the claimant's ongoing lower back problems beyond July 8, 2002; and

Whether or not the claimant is entitled to Preventative Vocational Rehabilitation.

Decision

That responsibility should be accepted for the claimant's ongoing lower back problems beyond July 8, 2002; and

That the claimant is not entitled to Preventative Vocational Rehabilitation.

Decision: Unanimous

Background

During the course of her employment as a registered nurse on December 12, 2000, the claimant experienced progressive lower back pain along with pain, numbness and tingling in both feet and legs. File information showed that the claimant's initial onset of symptoms actually occurred in May 2000 from lifting heavy patients, but she continued working and did not report any injury to her employer.

Medical reports revealed that the claimant was treated by a general practitioner and by a chiropractor. The claimant underwent lumbosacral spine x-rays on May 8, 2000 and a CT scan of the lumbosacral spine on August 15, 2000. On January 17, 2001, the Workers Compensation Board (WCB) accepted the claim on the basis of an aggravation of a pre-existing condition.

Following an examination on May 3, 2001, a WCB medical advisor found that the claimant had a pre-accident condition of disc disease at L4-5 and L5-S1. As a consequence of repetitive lifting at work, the claimant then developed further disc symptomatology specifically related to the L5-S1 level on the right side. The examination also confirmed that the claimant had a sciatic irritation with an L5-S1 distribution on the right side. The medical advisor suggested further investigations, which included a CT scan or MRI of the lumbar spine along with an assessment by an orthopaedic specialist. Restrictions were also outlined until the orthopaedic assessment could take place.

The claimant underwent an MRI examination of the lumbosacral spine on June 15, 2001 and was assessed by an orthopedic surgeon on July 25, 2001. In a report to the WCB dated September 10, 2001, the surgeon's clinical impression was that the claimant had a refractory right S-1 radiculopathy. The specialist also made the following observation regarding the MRI results of June 15, 2001, "…has identified Grade I L5-S1 isthmic spondylolisthesis with bilateral defects. The L5-S1 disc is degenerative with no herniation. Likewise no disc herniation has been identified at L4-5. The S-1 nerve roots are clear and the radiologist suggests that there may be a traction effect on the L-5 nerve roots at the foramina due to bony slip and some bulging." Based on these findings, the surgeon recommended that the claimant be referred to a rehabilitation and medicine specialist (physiatrist) to consider the possibility of an epidural steroid injection. He also stated that treatment should be directed away from surgery.

In a report dated October 11, 2001, a second orthopaedic surgeon stated, in part, that the CT scan and MRI findings basically demonstrated bony compression with the listhesis slippage. The discs did not seem to be contributing to a large extent. The surgeon recommended that the claimant be treated conservatively with physiotherapy and that she should be seen again in six months time to evaluate the extent of her listhesis. The surgeon commented that the claimant was at risk for the need of surgery in the future and that a custom fitted brace would be considered at that time.

In a report to the orthopaedic surgeon dated January 10, 2002, the physiatrist indicated that the claimant's imaging indicated a Grade 1 to 2 spondylolisthesis associated with L5 spondylolysis. He stated that most of the claimant's pain was in the buttock region, but there were also symptoms in the lumbosacral area and into the leg. Arrangements were being made for an epidural corticosteroid injection.

A WCB medical advisor examined the claimant on May 22, 2002. He felt that the claimant's condition had not changed substantially since the last examination in May 2001. Specific restrictions were outlined.

A follow-up report dated June 14, 2002 was received from the physiatrist. He stated that the claimant did not describe any benefit following the injection. The specialist's impression was that the claimant's symptoms were either related to the foraminal stenosis or possibly the sacroiliac joint. A second injection was recommended.

On June 26, 2002, a senior WCB medical advisor reviewed the file and made provided the following opinion to primary adjudication:
"I believe the claimant had a rather non-traumatic C.I. and although initial call in examination demonstrated some sciatica feature, further investigations revealed L5-S1 grade one spondylolisthesis without any disc herniation. The nerve root compression is therefore likely due to the bony slip. Therefore the claimant's current problem, in my opinion, is due to her pre-x spondylolisthesis and therefore the recommended permanent restrictions by Dr. [WCB medical advisor)] should be preventive."
In a letter dated July 8, 2002, primary adjudication determined that the claimant had essentially recovered from the effects of her compensable injury and that any ongoing back difficulties were directly related to her pre-existing condition. This decision was reached based on the recent WCB examination and in consultation with a medical advisor. The claimant was also advised that her case was being referred to the Preventive Committee to determine if she qualified for preventive vocational rehabilitation services.

On August 20, 2002, a worker advisor acting on behalf of the claimant wrote to Review Office requesting reconsideration of the above decision. It was the claimant's opinion that she had been coping with her regular duties as a registered nurse prior to the December 12, 2000 compensable injury. To date, the claimant felt that she had not recovered to her pre-accident status. The claimant was of the opinion, based on several of the medical reports on file, that she suffered an enhancement of her pre-existing back condition and that she had not recovered from the effects of the December 12, 2000 compensable injury.

In a PVR committee memo dated November 13, 2000, it determined that the claimant's case did not meet the criteria outlined under the preventive vocational rehabilitation policy. "The rationale for this decision is there has not been a true pattern of risk, as the sole prior claim was approximately fifteen years ago, and of 4 days time loss. Also, the medical information on the nature her pre-existing condition suggests the risk of further compensable time loss is relatively low." The claimant was advised of this decision in a letter from primary adjudication dated December 9, 2002.

In its November 29, 2002 decision, Review Office determined that no responsibility could be accepted for the claimant's ongoing low back problems beyond July 8, 2002. Review Office noted that an orthopaedic consultant to Review Office had reviewed the file on October 10, 2002. Review Office stated, "It was his opinion that there was no evidence to suggest that the work performed by the worker on December 12, 2000 resulted in any enhancement of her pre-existing spondylolisthesis. He stated that he believed that the worker's ongoing symptoms were attributable to the longstanding, pre-existing degenerative changes in her lumbosacral spine, and that the injury of December 12, 2000 was no longer playing any role in her ongoing disability." Review Office therefore concluded that the weight of medical evidence suggested the claimant had recovered from the effects of any injury sustained on December 12, 2000 and that she was not entitled to any further benefits."

In a letter to Review Office dated December 12, 2002, the worker advisor requested reconsideration of the decision made by primary adjudication on December 9, 2002. The worker advisor noted that the claimant was currently working in a term position instructing practical nurse students. The term was going to end in April 2003 and the claimant would then be required to return to her regular nursing duties. It was the claimant's opinion that returning to her pre-accident position would place her at a high risk of re-injury. The claimant based her opinion on the medical information on file, which showed that she had a significant pre-existing back condition and that her regular duties as a registered nurse included heavy physical work. The claimant was therefore of the opinion that she qualified for preventative vocational rehabilitation benefits.

In a submission to primary adjudication dated February 11, 2003, the worker advisor requested the convening of a Medical Review Panel (MRP) as she felt there was a clear difference of medical opinion between the claimant's treating general practitioner (letter dated February 4, 2003) and the opinion expressed by the Senior Medical Advisor dated June 26, 2002. On March 11, 2003, a sector manager denied the request for an MRP stating that she could not find a "difference in medical opinion regarding the medical matter affecting entitlement to compensation."

On March 21, 2003, Review Office upheld the decisions that the claimant was not entitled to preventative vocational rehabilitation or to the convening of an MRP. With respect to the issue of preventative vocational rehabilitation, Review Office stated, in part, that the claimant had the necessary skills required to obtain employment that would significantly reduce the likelihood of her suffering further significant back injuries. Thus, she did not qualify for preventive vocational rehabilitation.

With respect to the MRP issue, Review Office did not feel that the general practitioner's statement met the definition of opinion as set forth in subsection 67(1) of The Workers Compensation Act. It therefore denied the request for an MRP.

In March 2003, the worker advisor appealed Review Office's decisions of November 29, 2002 and its decision of March 21, 2003 which confirmed that the claimant was not entitled to preventative vocational rehabilitation. On June 26, 2003, an oral hearing was held at the Appeal Commission to consider the appeal.

Reasons

As the background notes indicate, a WCB medical advisor examined the claimant on May 3rd, 2001. In arriving at our decision, we attached considerable weight to the following clinical findings and conclusions reached by this WCB medical advisor:

“The claimant’s occupation, pre-accident condition, accident, compensable injury and clinical examination have all been undertaken today. This examination showed the claimant had a pre-accident condition of disc disease at L4-5 and L5-S1. As a consequence of the repetitiveness of her lifting at work, the claimant then developed further disc symptomatology. This specifically related to L5-S1 on the right side. Examination today confirms the claimant does in fact have a sciatic irritation with an L5-S1 distribution on the right side.

Based on the above, it is considered this claimant has, at very least, an aggravation of her pre-accident condition and this in fact may be an enhancement bearing in mind the length of time she has been symptomatic since the time of her compensable complaints.” (Emphasis ours)

Further investigations were carried out with respect to the claimant’s ongoing condition. Upon receipt of various medical reports, the medical advisor was asked to comment on whether the claimant sustained an aggravation or an enhancement of her per-existing condition? In response to this question, the WCB medical advisor confirmed in a memorandum to file dated February 6th, 2002 as follows:

“With all the evidence now available, I believe the following is the explanation at this time. The C [claimant] suffered bony slippage to her sponylolisthesis. This then caused traction of L5 roots due to bony slippage and bulging at the foramina. This has therefore to be considered an enhancement.”

WCB policy 44.10.20.10 defines an enhancement as follows, “Where a compensable injury permanently and adversely affects a pre-existing condition or makes necessary surgery on a pre-existing condition.”

We note that WCB Healthcare Management Services has recommended the following permanent restrictions be assigned to the claimant with respect to her future work duties: “No repeated bending, stooping, crouching; No weights greater than 20 pounds; No prolonged standing or walking.”

We find based on the weight of evidence that the claimant did, on a balance of probabilities, enhance her pre-existing low back condition at the time of her compensable injury and that she has not and will not fully regain her pre-accident status as a result of this enhancement. We further find that responsibility should be accepted for the claimant’s ongoing lower back problems beyond July 8th, 2002. In this regard, however, we accept the worker advisor’s advice that the claimant was “never in a loss of earning capacity” situation and that the benefits being sought at this time were for medical treatment only.

As to the second issue, we agree with Review Office, that the claimant is not entitled to preventative vocational rehabilitation. Although we agree with Review Office on this issue, our reasons are somewhat different. In the present case, we have a permanent enhancement of a pre-existing condition as a consequence of the compensable injury. In addition, the claimant has been assigned permanent restrictions. WCB policy 43.10.60, which deals with Preventive Vocational Rehabilitation, sets out in the administrative guidelines section that potential candidates for preventive vocational rehabilitation are those workers, who are considered to have sufficiently recovered from the effects of their compensable injury. Inasmuch as the claimant has permanently enhanced her pre-existing condition as a result of her compensable incident, she cannot therefore qualify for preventive vocational rehabilitation.

We would also like to make mention of the fact that the employer considers the claimant to be both a valued and qualified employee. “…She is plainly very articulate. She is bright. The employer values her. I don’t think it would be very difficult to re-employ her in something different with a little bit of educational upgrading or whatever.” And as an aside, although the claimant does not qualify for preventive vocational rehabilitation, she may nevertheless be entitled to regular vocational rehabilitation benefits at some point in light of the permanent enhancement of her pre-existing condition.

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 5th day of August, 2003

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