Decision #105/03 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on June 12, 2003, at the request of an advocate, acting on behalf of the claimant. The Panel discussed this appeal on June 12, 2003 and again on September 5, 2003.Issue
Whether or not the claimant is entitled to the payment of wage loss benefits beyond June 13, 1997.Decision
That the claimant is entitled to the payment of wage loss benefits from June 13, 1997 to September 22, 1997 inclusive and final.Decision: Unanimous
Background
On May 28, 1996, the claimant tripped while crossing from one rail car to another and he fell and landed on his back. On the same day of accident the claimant sought medical treatment and was diagnosed with a rib cage contusion. When seen by a second physician on May 29, 1996, the diagnosis rendered was a back strain and the claimant was referred to an orthopaedic specialist and to attend physiotherapy sessions. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on May 29, 1996.On July 17, 1996, the claimant underwent a bone scan which identified two right lower posterior rib fractures.
A WCB medical advisor reviewed the case on September 27, 1996. The medical advisor noted that the claimant's fractures should be healed by now and that he should be capable of returning to work on a graduated basis.
In a report dated October 29, 1996, the physiotherapist noted that the claimant's function was improving but he was clinically not able to return to a pipeline labour-type position.
In a report dated November 25, 1996, the orthopaedic specialist commented that the claimant's therapy was discontinued after a couple of weeks as it was causing more pain likely because of the fractured 12th and 11th ribs. He stated that since the fracture had now united, the claimant should possibly resume more active therapy and an exercise program to mobilize and strengthen his back.
On November 22, 1996, the claimant was advised by his WCB adjudicator that following review of the medical documentation and consulting with a WCB medical advisor, he was able to return to work on modified duties for a four week period, after which he would be capable of returning to his regular duties. Benefits and services would be paid to December 2, 1996 inclusive and final.
In February 1997, the attending physician reported that the claimant worked between January 24, 1997 to February 11, 1997 but his back was still painful.
On March 11, 1997, the orthopaedic specialist reported that the claimant seemed to have stiffness in his back and that it was likely secondary to the fracture of his lower two ribs and associated soft tissue strain about the area. He asked the WCB to authorize six to eight weeks of therapy, i.e. mobilization and reconditioning of the claimant's lower back.
A WCB medical advisor examined the claimant on April 29, 1997, to determine his current status and functional capabilities. The claimant complained of pain at the left paravertebral musculature at the level of the lower thoracic vertebrae. The claimant also demonstrated many abnormal illness behaviors during the examination, however, he was consistent regarding his localization of pain. The medical advisor felt that the claimant likely strained the left paravertebral musculature and possibly had tightening and shortening of the muscles in this area. She felt that a reconditioning program would enable the claimant to return to work.
On May 8, 1997, a WCB adjudicator advised the claimant that the WCB would arrange for him to attend a 4 week reconditioning program and by the end of that time it was expected that he would be able to perform his pre-accident duties. Based on this decision, the claimant's wage loss benefits were reinstated up to June 13, 1997 inclusive and final.
In June 1997, a physiotherapist reported that the claimant was initially quite motivated but this wavered due to his ongoing back pain and spasm. She stated that the claimant had some derangement /dysfunction at his lumbar spine which required further investigation and that he was unable to return to work.
In a report dated July 2, 1997, the orthopaedic specialist's examination findings revealed that the claimant leaned forward when he walked. He had restricted motion in his lumbar spine. He could bend forward with his fingertips reaching just below the level of his knees. The claimant complained of pain on all motions of the lumbar spine, more so on rotation. Sensation, muscle power and reflexes were normal in the lower limbs. The specialist advised the claimant to continue with his exercises and to increase his physical activities as tolerated. He also suggested that the claimant consider an alternate job that did not involve heavy lifting.
On July 8, 1997, the Review Office acknowledged receipt of an appeal submission from the claimant dated July 2, 1997. The claimant contended that his back pain and chronic spasm persisted despite physiotherapy and pain medication.
In a decision dated August 13, 1997, the Review Office determined that there was no basis to extend wage loss benefits beyond June 13, 1997 based on the following weight of evidence:
- the nature of your compensable injury and expected symptom duration;
- your line of work;
- Dr. [orthopaedic specialist's] November 25, 1996, and March 11, 1997, examination findings and opinion;
- the little work you were able to do in late 1996, and early 1997;
- the persistence of your symptoms during that period;
- Dr. [WCB medical advisor's] April 29, 1997, assessment and recommendations;
- the subsequent treatment provided;
- the time that has passed; and
- the current lack of abnormal clinical findings.
On September 22, 1997, x-ray results of the lumbosacral spine revealed mild disc space narrowing present at L3-L4 and L4-L5. The limbus vertebra was noted in L4. The apophyseal and sacroiliac joints appear reasonably well maintained. The hip joints appeared unremarkable.
On May 16, 2003, an advocate for the claimant appealed Review Office's decision of August 13, 1997. On June 12, 2003, an oral hearing was held at the Appeal Commission.
Following the hearing and discussion of the case, the Appeal Panel requested additional information from the claimant's attending physician and from a physical medicine and rehabilitation specialist, prior to discussing the case further. Reports from these physicians were later received and were forwarded to the interested parties for comment. On September 5, 2003, the Panel met further to discuss the case and to render its final decision with respect to the issue under appeal.
Reasons
This case involves a worker who suffered an injury to his mid/lower back, as well as fracturing two ribs, as a result of a workplace accident in May 1996. His claim was accepted and benefits were paid for loss of earnings and medical aid.His benefits were initially terminated as of December 2, 1996, as it was determined that he was fit to return to work. Upon reconsideration, Review Office held that he had remained symptomatic and unable to return to regular duties until June 13, 1997. Full benefits were extended to that date.
In May 2003, he appealed that decision to the Appeal Commission. The issue before the Appeal Panel was whether or not he is entitled to benefits beyond June 13, 1997.
For his appeal to be successful, the panel would have to determine that his inability to return to work was causally related to his compensable injury. We concluded that this was so, but for only a short period of time.
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 advocate. Subsequent to the hearing, we sought further information from his family physician and from a specialist in physical medicine and rehabilitation.
In looking at whether or not his current medical problems can be reasonably attributed to his workplace injury, we considered the following:
- March 11, 1997 - Upon examination by his orthopaedic specialist, he was found to have pain on the left side of his dorsolumbar spine area. The doctor also noted stiffness in his back, which he felt was likely secondary to his rib fractures. He recommended a course of therapy for mobilization and reconditioning of his back.
- An x-ray, done the same day, found no significant disc narrowing and normal apophyseal joints in his lumbosacral spine; and minimal scoliosis and normal vertebral bodies and disc spaces in his thoracic spine.
- April 29, 1997 - A board medical advisor examined the claimant and concluded that he likely had strained the left paravertebral musculature; and that he may now have tightening and shortening of the muscles in this area. The board doctor also noted that the claimant demonstrated abnormal illness behaviours. She, too, recommended a reconditioning program.
- The claimant was enrolled in a reconditioning program which was to go from May 14, 1997 to June 17, 1997. At the end of this program, the physiotherapist reported that he had not achieved the goals originally set out. She felt that he was not able yet able to return to work and that his condition warranted further investigation.
- July 2, 1997 - He was seen again by the orthopaedic specialist, who reported that he "still feels pain on the left side of his upper lumbar spine area on activities involving turning, twisting and bending over." The doctor further noted that "sensation, muscle power, and reflexes are noted to be normal in the lower limbs." He recommended that the claimant continue with the exercises given him by the physiotherapist and increase his physical activities.
- July 18, 1997 - A CT scan found "no evidence of a disc protrusion … The bones are within normal limits … No evidence of central spinal stenosis is seen … No foraminal encroachment is identified … Normal CT scan of the spine from T10 to L2."
- September 22, 1997 - The claimant was again examined by the orthopaedic specialist, who reported:
"…. he was noted to have full range of motion in his lumbar spine, although he complains of pain on all motions, especially on left lateral flexion. Sensation, muscle power, reflexes were noted to be normal. He had full motion in both hip joints. Motions of the hip joints were painless. X-rays of his lumbosacral spine were done. These suggest narrowing of the disc spaces at L3 - 4 and L4 - 5 level compared to the discs above and below. These type of changes were also noted on x-rays done earlier."
- October 21, 1997 - He was again examined by the orthopaedic specialist, who reported that, although the claimant complained of increased pain, his clinical signs were all as on the previous visit.
- January 7, 1998 - A bone scan found the rib fractures to have resolved.
- July 18, 2000 - An MRI of his thoracic and lumbar spine found "minor multilevel lumbar and thoracic degenerative disc disease." No other significant abnormalities were found; specifically no disc protrusion.
- July 16, 2003 - Letter from specialist in Physical Medicine and Rehabilitation. The doctor noted that he had seen the claimant over the past few years. He reported:
"His basic complaints have been back pain. Results of any tests have not yielded a good pathological diagnosis. They are essentially normal. I think he has chronic muscular pain, which would be in the area of myofascial, fibromyalgia, probably associated with anxiety and depression. I doubt that it has any relation to a significant injury. I am at a loss to explain his pain."
- As of June 13, 1997, the claimant was not yet able to return to work.
- By September 22, 1997, all of the claimant's objective signs had returned to normal. Other tests, including x-rays and CT scans were normal.
- An x-ray in September 1997 showed some minor disc narrowing, which may have been an early indicator of degenerative disc disease (DDD). The July 2000 MRI found minor multilevel DDD.
- His current doctors are unable to find a specific medical cause for his ongoing pain.
Having come to this conclusion, we are of the view, however, that his benefits were terminated a bit early. From our review of the file, the only reason we could find for ending his benefits on June 13, 1997 was that that was the date for the ending of his reconditioning program. There was no medical evidence as of that date indicating he was able to return to work. Indeed, the physiotherapist who had conducted the reconditioning program stated, on June 17, that he was not able to return to work.
It was not until September 22, 1997 that the orthopaedic specialist reported that all of his clinical signs were, for all intents, normal. This corroborated the findings of the CT scan of July 1997, which also reported normal findings.
Therefore, it is our further conclusion that the claimant is entitled to full benefits up to and including September 22, 1997.
Accordingly, the appeal is allowed in part, as set out above.
Panel Members
T. Sargeant, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
T. Sargeant - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 30th day of September, 2003