Decision #134/03 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on June 10, 2003, at the request of the union representative, acting on behalf of the claimant. The Panel discussed this appeal on June 10, 2003 and requested further medical reports. The Panel reviewed the additional reports and discussed the appeal on October 10, 2003, rendering a decision.Issue
Whether or not the claim is acceptable.Decision
The claim is not acceptable.Decision: Unanimous
Background
The claimant is an operating room technician who has been employed with a hospital since 1981. On August 2, 2000, the claimant suffered pain in her lower back when she twisted getting up from a stool in the course of drying medical instruments. The pain gradually increased over the next day making it difficult to walk or stand from a sitting position. The claimant saw a physician on August 3, 2000 who diagnosed a low back strain preventing her from returning to work. X-rays taken on August 4, 2000 revealed very minor end plate spurring in the lumbar spine.The WCB accepted the claim for compensation and a treatment plan was instituted with return to work expected in 4 to 6 weeks. The claimant received chiropractic adjustments and extensive physiotherapy. Ongoing medical and physiotherapy reports indicated gradual improvement but continued difficulty in movement and sitting or standing for long periods. As her recovery was slow, the claimant was examined on October 25, 2000 by a WCB physiotherapy consultant and a WCB medical advisor. The consultants noted that neurological testing was normal and the claimant had full range of lumbar motion. The claimant had complaints of difficulty lying down and interrupted sleep. The consultants noted the claimant had sustained a whiplash injury to her neck and lower back in a motor vehicle accident in 1972 and since that time the claimant indicated that she had difficulty lying on her back. The consultants recommended acupuncture treatments and referred the claimant to a specialist for pain control.
The claimant received weekly acupuncture treatments from a physician at a pain clinic. The physician noted lumbar stiffness and tenderness over the S1 joints and ordered a bone scan to determine the presence of inflammatory arthropathy. The bone scan conducted on December 13, 2000 appeared normal. As it was noted that the claimant was overweight and deconditioned, she was referred for physiotherapy on December 6, 2000 to begin a reconditioning program before proceeding with a graduated return to work ("GRTW") program.
Following receipt of the physiotherapist's report dated January 24, 2001 indicating that the claimant had significantly improved, a rehabilitation team meeting was held on February 2, 2001 and a GRTW program was established.
A CT scan of the claimant's lumbar spine was done on February 28, 2001, which revealed moderate degenerative changes in the facet joints bilaterally at the L5-S1 levels. No evidence of disc herniation, spinal stenosis or nerve root compression was found.
Physiotherapy was continued throughout the GRTW program with the complainant completing 28 sessions from December to May 2001. The physiotherapy reports during this time noted improvement in movement, pain, strength and function. In his discharge summary dated May 23, 2001, the physiotherapist noted that pain was under control and the claimant was placed on a home program for lumbar stabilization.
The claimant completed her GRTW program and resumed her regular duties on April 27, 2001. In a report from the physician at the pain clinic, who examined the claimant on October 17, 2001, it was noted that the claimant was doing well at work, with some low back pain, and her only medication was 30 mg of amitriptyline at night.
The employer was provided with 50% cost relief as the WCB determined there was evidence of a pre-existing condition that contributed to the time loss from work.
On August 8, 2001, the claimant reported another back injury that occurred when she picked up three boxes of water at work. The claimant attended at her physician and remained off work until August 13, 2001, when she returned to full duties. The claim was accepted by WCB and benefits were paid for the time off work.
The claimant continued in her regular duties until March 20, 2002 when she complained to her employer of increasing back pain. According to the accident report, the claimant attributed her pain to her original accident of August 2, 2000 indicating that there was nothing she had done to make her back worse and that it just kept getting worse as time went on. The claimant has remained off work since March 21, 2002.
According to the notes on file, the claimant telephoned the WCB on April 2, 2002 and advised that she had been having back problems since February. The WCB case manager contacted the claimant on April 5, 2002. According to the case manager's memorandum to the file, the claimant advised that she had noticed a gradual increase in pain in the three weeks prior to March 20, 2002. She advised that prior to this time she was managing fine at work with only occasional aches and pains. The claimant could not recall anything unusual at home or at work that could account for the pain. She had attended at her chiropractor on March 21, 2002 who advised her to remain off work. She advised that she had improved somewhat but continued to have difficulty sitting or standing for any length of time.
A WCB medical advisor reviewed the file on April 16, 2002 noting that the claimant has chronic mechanical low back pain and that the CT scan showed evidence of pre-existing osteoarthritic changes. The medical advisor recommended that the file be reviewed by the WCB chiropractor.
The WCB chiropractor reviewed the file on April 23, 2002. The chiropractor noted that when the claimant last saw a physician on October 17, 2001, she was stated to be doing well at work with some low back pain. It was not until 5 months later on March 21, 2002 that she attended at a chiropractor with increased back pain. The WCB chiropractor was of the opinion that the claimant's current back problem was not related to the compensable injury of August 2, 2000.
In a letter dated April 26, 2002, Rehabilitation and Compensation Services determined that the WCB would not accept responsibility for treatment or time loss from work since March 20, 2002. Compensation Services noted that the claimant had not attributed her pain to any new accident or to anything related to her work activities. Compensation Services was of the opinion that the claimant had recovered from the effects of her August 2, 2000 work injury and that the current disability was related to the pre-existing degenerative changes noted on the CT scan results.
In a letter dated June 6, 2002, the union representative requested reconsideration of the claimant's back problems as a new accident claim based on an aggravation of her pre-existing condition caused by the claimant's physically demanding job duties.
A WCB adjudicator contacted the claimant to obtain information concerning her job duties. According to the notes on file, the claimant advised the adjudicator that she had increased pain over the 3 weeks prior to March 20, 2002 and that her workload had increased during this time. She indicated she cleans up to 28 scopes per day and that she is required to stand for long periods. She also advised that changes to smoking privileges at work required that she walk down 2 flights of stairs, which she found exhausting and hard on her back. She could not identify any incident that may have exacerbated her condition.
In a letter dated July 23, 2002, an adjudicator advised the claimant that her claim was denied. The adjudicator was of the opinion that the claimant's current back difficulties were not related to her workplace activities given the length of time she had been performing the same duties without difficulty; that there were no apparent changes to the job duties or work environment, and that no other accidents had occurred. On August 20, 2002, the union representative appealed this decision to the Review Office.
On January 24, 2003, the Review Office determined that the claim was not acceptable. In its decision, the Review Office referred to the new medical report obtained from the claimant's physician dated January 6, 2003. In this report the physician confirmed having seen the claimant on 6 occasions between April and December 2002 for ongoing back pain. The physician diagnosed the claimant as suffering from frequent exacerbations of back pain and that her weight was a contributing factor.
In rejecting the claimant's position that the onset of her low back pain in March 2002 was attributable to her duties as an operation room technician, the Review Office stated the following:
"Review Office finds that the frequent exacerbations of back pain suffered by the worker are, on a balance of probabilities, related to the degenerative changes in her lumbosacral spine and her excessive weight. It is not considered that there is any evidence to suggest that her employment duties played any significant role in her ongoing back complaints. As such, Review Office determines that her claim is not acceptable."On February 24, 2003, a union representative on behalf of the claimant appealed the Review Office's decision and an oral hearing was convened.
Evidence at the Hearing held on June 10, 2003
A hearing was held before the Panel on June 10, 2003. The claimant and the union representative were present as were two representatives on behalf of the employer.
At the hearing, the position of the claimant was clarified by the union representative. The union representative submitted that contrary to her written submission, she was no longer putting forward the position that the claimant's current back problems were related to or were a recurrence of the August 2000 injury. The union representative submitted that the claimant's back problems were related to her employment in that the physical demands of her job duties over time or a significant increase in her workload caused an aggravation or enhancement of her pre-existing degenerative back condition.
The employer's position was that the disability was due to a pre-existing degenerative back condition and there was no evidence that the claimant's back condition was enhanced or aggravated by any work related activities.
The claimant gave evidence at the hearing in response to questioning from the panel and her representative. The claimant described her job duties as involving sterilizing and cleaning on average 23 to 29 scopes each shift. The scopes varied in thickness from ¼ of an inch to the size of a finger and in length ranging from very short to 6 feet, weighing between 2 and 4 pounds at the most. The claimant was required to manually clean the scopes with brushes while standing with the scopes either on tables or in sinks. The claimant was required to carry and place the scopes in machines to complete the sterilization process and on occasion to manually dry the scopes using an air vacuum. The claimant was standing for most of her shift. The claimant also testified that a specific procedure had to be followed for cleaning each scope that allowed her to clean no more than 23 to 29 scopes each shift. If more clean scopes were required, a backlog would arise, but there was little the claimant could do to increase the number of scopes she could clean, given that each scope had to complete a set cycle in the sterilization machine.
The claimant testified that a physiotherapist had treated her from March 2002 until April 2003. When asked about the progress of her back over the last year, the claimant explained that sometimes it improves and then it gets worse with stabbing pain to the right of her spine. The pain is sometimes aggravated by activity or worsens for no apparent reason that she can identify.
When asked if there was anything specific that had occurred in the three weeks prior to March 20, 2002 that might have caused her back pain, the claimant stated that there had been an increase in the workload during this time. She testified that she was cleaning at least 30 scopes a day during this time. On questioning by the panel, it was determined that the hospital maintained records listing the number of scopes cleaned each month and the claimant testified that she kept her own handwritten tally by reviewing the hospital records. The union representative did not submit the hospital records as evidence at the hearing. On questioning by the panel, the claimant provided the panel with the tally sheet she had prepared listing the number of scopes cleaned covering the months from April 2001 to April 20021. According to this tally, the number of scopes cleaned each month varied considerably ranging from 254 to 381 scopes with the first 3 months in 2002 showing 353 scopes cleaned in January, 291 in February, and 358 in March.
Additional Evidence
The Panel met following the hearing and determined that it would be relevant to request an updated physiotherapist report given the extensive physiotherapy undertaken by the claimant. As the file also noted that the claimant had made a claim for long-term disability benefits, the panel requested a copy of the physician's report filed in support of that claim. Both reports were provided to the panel and to the parties. The employer filed a further submission. No response was received from the claimant.
The physiotherapist's report dated July 16, 2003 refers to 25 sessions over 10 months. The physiotherapist diagnosed the claimant as suffering from mechanical low back pain from initial work related injury in August 2000. However, the physiotherapist further noted as follows:
"The mechanism of injury (getting up from a chair and twisted (sic) to the left) is not enough force to produce all her symptoms, so in my opinion this is just another flare up from her previous low back condition."In the physician's report dated September 17, 2002, the physician concludes, after examining the claimant and reviewing her medical history since August 2000, that she suffers from "mechanical low back pain with osteoarthritic changes of the facet joints of L5-S1".
Reasons
The issue in this appeal is whether the claimant's back problems are related to her employment. Section 4(1) of The Workers Compensation Act provides for compensation to a worker for personal injury "by accident arising out of and in the course of the employment". Pursuant to this section, the panel must be satisfied that there is a causal connection or relationship between the employment and the injury.We have reviewed all of the evidence and in our opinion the weight of the evidence, on a balance of probabilities, indicates that the claimant's back problems are not related to her employment and therefore the claimant is not entitled to compensation.
In reaching this conclusion, the panel notes the WCB's Rehabilitation and Compensation Services determined that the claimant had recovered from the effects of her earlier workplace injury that occurred in August 2000. The claimant returned to her full duties on April 27, 2001 and continued to work until March 20, 2002, (except for a 4 day period in August 2001 related to a different incident), without further medical care or significant symptoms. When last seen by a physician on October 17, 2001, the claimant was noted to be doing well at work. At hearing, the claimant's representative did not pursue the issue of a possible recurrence of the original injury. In light of this, the panel considered whether the claimant's back condition resulted from a new work related accident.
The panel finds, on a balance of probabilities, that the claimant's back pain is not related to any new work related accident. In reaching this conclusion we placed weight on the following evidence:
- In the claimant's conversations with her employer on March 20, 2002, in the accident report related to her claim and in her subsequent discussions with the WCB, the claimant was unable to indicate any incident, accident or event at work that may have exacerbated her back condition;
- The claimant testified at the hearing that her back sometimes improves and then flares up again. These flare ups may be caused by some activity or for no apparent reason;
- The claimant's description of her job duties indicated that the scopes she was required to clean were very light weighing between 2 and 4 pounds and generally were only lifted from a basin or table while she remained standing. The evidence did not indicate that an increase in demand for clean scopes would have any significant impact on the manner in which she performed her duties or on the pace of those duties in general. Given the time necessary for the cleaning process, only 23 to 29 scopes could be cleaned in any shift. The evidence of the number of scopes cleaned each month for the one-year period prior to the injury did not support a finding that there was any significant change in the claimant's work environment;
- With respect to the medical evidence on file, the CT scan conducted on February 26, 2001, revealed moderate hypertrophic degenerative changes in the facet joints bilaterally at the L5-S1 level. There was no evidence of disc herniation, spinal stenosis or nerve root compression. The bone scan dated December 13, 2000 revealed no abnormalities, neurological testing was normal and an x-ray of the spine dated August 3, 2000 revealed very mild end plate spurring;
- In a report dated July 16, 2003, the physiotherapist failed to note any event or incident related to the claimant's work duties that may have precipitated an exacerbation of her back pain, other than the incident of getting up from a chair in August 2000. The physiotherapist points out that the August 2000 injury would not have been enough force to produce all of the claimant's symptoms and concludes that her ongoing back pain is just another flare up of her back condition;
- In a report dated September 17, 2002 in support of the claimant's long-term disability claim, the physician describes the claimant's problems as beginning in August 2000 and that she stopped working on March 20, 2002 due to persistent and worsening lower back pain. There is no mention of any work-related incident that may have caused the increase in pain at that time. In diagnosing the claimant's condition, which prevents her from returning to work, the physician states that she has mechanical low back pain with osteoarthritic changes of her facet joints;
- In the January 6, 2003 medical report, the claimant's physician diagnosed the claimant as suffering from "frequent exacerbations of back pain".
In summary, we find that the claimant's back condition is not a consequence of an accident arising out of and in the course of employment. Therefore the claimant's appeal is denied.
Footnotes
1Entered as Exhibit #2 at June 10, 2003 hearing.
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 27th day of November, 2003