Decision #100/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on June 17, 2003, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on June 17, 2003 and again on September 8, 2003.

Issue

Whether or not as of August 9, 2002, the claimant had recovered from the effects of his July 26, 2001 compensable injury.

Decision

That as of August 9, 2002, the claimant had recovered from the effects of his July 26, 2001 compensable injury.

Decision: Unanimous

Background

On July 26, 2001, the claimant injured his low back from shoveling sand and moving steel tables at work. He then sought medical attention on July 31, 2001 and was diagnosed with low back pain with sciatic radiation. The treatment plan included medication and physiotherapy treatments. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.

On September 5, 2001, a CT scan was performed on the lumbar spine. The impression of the x-rays were as follows:

1. "Small right paracentral disc protrusion at L4-L5.
2. Bilateral pars defects involving L5 with no evidence of any significant spondylolisthesis."

In a September 14, 2001 progress report, the attending physician noted that the claimant complained of slight pain but wanted to return to work. It was agreed that the claimant was capable of alternate or modified duties, part time, for two weeks and then to full time. File records showed that the claimant did return to modified duties but he continued to experience back pain. On November 14, 2001, a WCB medical advisor assessed the claimant to determine his current medical status and need for any further treatment or intervention.

The medical advisor concluded that the mechanism of injury appeared to have been a flexion rotational movement while shoveling. The likely injury was to the L4-5 disc as suggested on the CT scan. The medical advisor further stated, "Despite earlier improvement, with return to work at modified duties, the claimant appears to have had some progression of his radicular symptoms and lately an increase in pain and sleep dysfunction. Findings of a bilateral pars intra-articularis defect at L5 are likely not contributing that much to findings at this time, and would not be considered a part of the compensable injury, rather pre-existing." The medical advisor recommended that the claimant remain in the workplace with certain restrictions. He also stated that the claimant's depression and sleep disorder were directly related to his compensable injury. An MRI would also be arranged.

An MRI examination took place on January 11, 2002. The impression of the test results stated the following: "At the L5-S1 level, there is bilateral L5 spondylolysis without spondylolisthesis."

On February 20, 2002, the attending physician reported that the claimant was almost pain free until he restarted physiotherapy. "Doing exercises to relieve disc but this aggravated the R sided pain (pars defect). Now having dull burning ache. Neuropathic pain restarting. Was able to work 3 hrs. twice per week". Subsequent reports from the physician indicated that the claimant continued to experience pain and soreness in his L4-5 region in addition to right leg and right hip pain. On August 29, 2002, a WCB orthopaedic consultant assessed the claimant regarding his present medical status and capabilities.

In a decision letter by primary adjudication dated September 13, 2002, the claimant was informed that it was the opinion of the WCB's orthopaedic consultant that his pre-existing condition was aggravated by the compensation injury. "Fourteen (14) months after the fact, there was no longer a 'combined effect' between the pre-existing condition and the compensable injury. In other words, the claimant's ongoing problems were entirely related to his pre-existing condition." The claimant was informed that preventive restrictions were recommended by the consultant and he felt that the claimant was fully capable of returning to work as a supervisor in a full-time capacity (the claimant was offered a full time supervisory position as of August 9, 2002).

The letter further indicated that the claimant continuing working up to August 20th, but could no longer continue because of increased back pain. Primary adjudication noted that the supervisory position allowed the claimant to sit or stand as needed which would expect to be good for his back considering the nature of his injury. A report from the family physician dated August 23, 2002, indicated that the claimant should decrease his work hours to five hours per day on Monday, Wednesday and Friday and take more frequent breaks. The physical examination showed that the claimant's hip flexion was painful and that he had back pain but those were the extent of his findings. Primary adjudication concluded that the claimant was not entitled to further wage loss benefits beyond August 8, 2002 inclusive and final.

On October 9th and November 27, 2002, a union representative corresponded with primary adjudication as she disagreed with its decision that there was no longer a relationship between the claimant's ongoing back difficulties and the compensable injury and that his pre-existing condition was solely playing a role in his disability. The union representative also argued that the claimant's supervisory position was inappropriate as it was worsening his back symptoms. On October 29, 2002 and December 9, 2002, primary adjudication upheld its decision that was made on September 13, 2002. The case was then forwarded to Review Office for consideration.

In a decision dated February 14, 2003, Review Office determined that the claimant had recovered from the effects of his strain injury by August 9, 2002. Review Office indicated that the claimant received a full year of benefits for his low back injury and there was no medical evidence that this injury was clinically anything more than a strain superimposed on a lumbar spine with a clinically confirmed pre-existing condition. Review Office felt that the claimant had a back at risk due to his underlying pre-existing condition of spondylosis and that his lumbar region was susceptible to back strain. On March 19, 2003, the union representative appealed Review Office's decision and an oral hearing was convened.

Following the hearing and discussion of the case, the Appeal Panel requested additional information from the claimant's treating orthopaedic specialist prior to discussing the case further. A report from the specialist was later received and was forwarded to the interested parties for comment. On September 8, 2003, the Panel met to render its final decision with respect to the issue under appeal.

Reasons

This appeal arises out of a claim for a lower back injury, which occurred in July 2001. The claim was accepted and benefits paid to August 8, 2002, at which time the board determined that he had sufficiently recovered from the effects of the injury to allow him to return to work in alternate duties.

Less than two weeks after returning to work, the claimant stopped working, claiming that his back pain was too severe. Benefits were not reinstated. This decision was upheld upon reconsideration by the Review Office. He has appealed that decision to this Commission.

For his appeal to be successful, the Panel would have to determine that, beyond August 8, 2002, his compensable injury continued to disable him from working. We did not make that determination.

In coming to our decision, we conducted a thorough review of the claim file, as well as holding a hearing at which we heard testimony from the claimant and his union representative. Subsequent to the hearing, we solicited further medical evidence from one of his treating physicians, a specialist in orthopaedic surgery.

We took particular note of the fact that, throughout the medical management of this claim, there were suggestions of pre-existing problems with his lower back.
  • September 2001 -- A CT Scan showed a "bilateral pars defect involving L5 with no evidence of any significant spondylolisthesis."

  • November 2001 -- Upon examination, a board medical advisor reported that this pars defect was not related to his compensable injury, but was a pre-existing condition.

  • January 2002 -- A MRI reported early degenerative narrowing and desiccation, as well as evidence of bilateral spondylolysis, but not spondylolisthesis.

  • May 2002 - An orthopaedic consultant to the board, upon review of the file, expressed the opinion that the compensable injury may have aggravated the pre-existing condition, but had not enhanced it. He doubted that the ongoing symptoms were related to the compensable injury.

  • July 2002 - The same orthopaedic consultant reported that the injury should have healed, by that time. The claimant's spondylolysis was, in his opinion, pre-existing and he was concerned that it might progress to degenerative disc disease.

  • August 2002 - The orthopaedic consultant examined the claimant. He restated his opinion that the spondylolysis pre-existed the injury, noting that this condition usually develops during childhood or early adolescence. He found no objective evidence that the spondylolysis had been enhanced by the injury.

  • November 2002 - The claimant's family doctor expressed the opinion that the pre-existing condition would not cause the degree of pain he was suffering.
At the hearing, we learned that the claimant had been referred, by his doctor, to see another orthopaedic surgeon. This specialist had sent the claimant for a bone scan, in part, to determine the age of the spondylolysis.

Subsequent to the hearing and prior to making our decision, we wrote to this specialist for a report of his examination in December 2002, as well as the results of the bone scan.

In respect of the bone scan, he wrote that "the patient had no evidence of scintilographic uptake at the site of the L5 spondylolysis. This would indicate that this is old, not new. I do note that the patient however did have very slightly increased uptake at the L5 - S1 disc space, which was considered as being due to degenerative disc disease."

He wrote further:
  • "The patient does not have evidence clinically nor radiologically of a significant disc protrusion nor nerve root impingement. The patient also does not have evidence of spinal stenosis. The bone scan rules out the spondylolisthesis (sic) as being anything recent."

  • "It is my opinion that the patient did not sustain any fracture nor disc protrusion in the accident of July 2001. The patient in my opinion did sustain a strain of his back."

  • "It is my opinion that the patient has recovered from the effects of the injury of July 26, 2001."
From our consideration of the foregoing, we have concluded that, by August 8, 2002, the claimant had recovered from the injury incurred in July 2001. His ongoing back pain, at that time, was, on a balance of probabilities, due to his pre-existing spondylolysis. As a result of this conclusion, he is not entitled to benefits beyond August 8, 2002.

Accordingly, the appeal is dismissed.

Panel Members

T. Sargeant, Presiding Officer
J. MacKay, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 15th day of September, 2003

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