Decision #08/04 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on September 24, 2003 at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on September 24, 2003 and requested further information. The Panel reviewed the additional information and discussed the appeal on December 9, 2003, rendering a decision.Issue
Whether or not the claimant is entitled to wage loss benefits beyond July 13, 2002.Decision
That the claimant is entitled to payment of wage loss benefits from July 13, 2002 to August 7, 2002, less any hours the claimant may have worked during this period.Decision: Unanimous
Background
During his employment on January 28, 2002, the claimant, a 26-year-old delivery driver, slipped backwards while pulling a dolly of drinks up a flight of stairs, and felt a sharp pain in his lower back. The claimant did not return to work the next day and attended at his physician on January 31, 2002, who noted complaints of centralized low back pain. The physician diagnosed the claimant as suffering from discogenic back pain. The claimant was noted to have restricted forward flexion at his waist with his fingers reaching his knees. His straight leg raises were 80º on the right and full on the left. Other neurological testing was normal. The claimant was referred for physiotherapy. The Workers Compensation Board ("WCB") accepted the claim for compensation and benefits were paid to the worker commencing January 29, 2002.The claimant was examined by his physician on February 20, 2002, who changed his diagnosis to lumbar strain and recommended a return to sedentary duties for a 2-week period. The claimant returned to modified duties for 2 to 4 hours per day on or about February 26, 2002.
On March 11, 2002 the claimant was examined by his physician. In his progress report, the physician noted a marked improvement in the claimant's lower back pain. The claimant's range of motion had improved and the physician recommended a return to modified work duties with a restriction of lifting no more than 20 lbs. A WCB physiotherapy consultant reviewed the file on March 20, 2002 and noted that the injury appeared to be a basic back strain that should respond to a stabilization program of exercises. He also recommended that if the claimant was not back to his full duties by the end of March, a further assessment and a Functional Capacity Evaluation (FCE) should be conducted.
In a subsequent examination, the claimant's physician noted in a progress report dated March 28, 2002, that the claimant's pain was resolving with improved mobility. Forward flexion at the waist revealed that the claimant's fingertips could reach his ankles. The physician recommended modified duties of light lifting, working 6 hours per day. When examined again on April 12, 2002, the claimant complained of worsening back pain with lifting. The physician recommended that an FCE be conducted.
An FCE was conducted by the WCB on April 15, 2002, which revealed limitations in lifting greater than 20 lbs. It was also noted that the claimant had gained 30 lbs. since the accident.
On June 18, 2002 the claimant was assessed by a WCB physiotherapy consultant. The consultant noted that the claimant described a past history of occasional back discomfort. On examination the claimant described occasional low back pain. Neither walking nor sleeping was problematic and the claimant was independent in self-care and home activities. The claimant was managing well at work, performing light duties 4 to 6 hours per day. The claimant was not on any medication and considered himself 75% recovered. The physiotherapy consultant diagnosed mechanical low back pain and recommended further physiotherapy to the lumbar spine and a stabilization program, with a graduated return to full duties.
On June 27, 2002, a WCB medical advisor reviewed the physiotherapist's examination notes and indicated that there were no objective lower back findings except an element of deconditioning. The WCB medical advisor was of the opinion that following physiotherapy; he would expect the claimant to return to work in full time regular duties. The WCB medical advisor outlined a graduated return to work ("GRTW") schedule during which time the claimant would be on light duties as a helper, while completing his physiotherapy.
In a letter dated June 27, 2002, Rehabilitation and Compensation Services notified the claimant regarding the GRTW schedule in modified duties as a helper on delivery trucks beginning at 6 hours per day from June 27 to July 6, increasing to 8 hours per day from July 8 to July 13. A restriction to avoid lifting over 50 lbs. was indicated during this period. Full time regular duties without restrictions would commence on July 15, 2002.
On July 9, 2002, the claimant advised his employer that he had aggravated his injury and would not be coming to work. The claimant attended at his physician and his physiotherapist. The physiotherapist examined the claimant on July 9, 2002 and noted in his report that there was no objective change in the claimant's range of motion and no significant change in spasm. The physiotherapist recommended continuing the stabilization program and as the results of the therapy show improvement, the claimant should be able to gradually resume full duties. The physician's progress report dated July 10, 2003 failed to include any information regarding examination findings and diagnosis although it did recommend sedentary duties.
According to the notes on file, on July 10, 2002 the claimant advised the WCB case manager that he hurt his back while pulling pallets. He also advised that he had a consultation scheduled with a sports medicine specialist for August 28, 2002. The claimant was advised that in the absence of any clinical objective evidence of a change, he was expected to continue his return to work program. The claimant did not continue with his graduated return to work program following July 8, 2002. The claimant performed sedentary office duties for approximately 1½ weeks, following which no further modified duties were provided. He has not returned to work in any capacity since July 19, 2002.
In a report dated August 30, 2002, the sports medicine physician outlined his examination findings. The physician suspected that the claimant had sustained a disc injury, with a resolving lumbar radiculopathy. The physician was of the view that the claimant had been left with symptoms consistent with a lumbar intervertebral disc disruption, which was slowly resolving, but which seemed to be exacerbated by his work. He recommended that a CT scan be performed.
A CT scan of the claimant's lumbar spine was performed on November 4, 2002. The results revealed degenerative changes at the L4-L5 and L5-S1 discs with a central disc prominence.
On December 9, 2002 Rehabilitation and Compensation Services wrote to the claimant's treating physician in order to clarify the claimant's condition. On December 15, 2002 the physician advised that when he examined the claimant on July 9, 2002, he noted markedly worse findings on straight leg raises, with only 45º on the left and 35º on the right. The physician was of the view that this was a significant worsening of the claimant's disc injury. The physician also noted that when he examined the claimant on August 7, 2002 there were objective findings of improvement.
On December 20, 2002 a second WCB medical advisor reviewed the medical information on file, including the CT scan results. The WCB medical advisor was of the opinion that the claimant's current diagnosis was mechanical low back pain with underlying degenerative disc disease. The medical advisor was of the view that the degenerative disc disease was a pre-existing condition, which may have played a role in the claimant's slow recovery. The medical advisor was of the opinion that the claimant's degenerative disc disease was aggravated and not enhanced by the injury.
On January 3, 2003, the WCB medical advisor reviewed the file with the WCB physiotherapy consultant. Both advisors were of the opinion that the initial injury in January 2002 was a low back sprain that had almost completely settled by June 2002. Contrary to the sports medicine specialist's assessment, the WCB advisors were of the opinion that there was no clinical correlation or significance to the bulging discs noted in the CT scan. They were also of the opinion that the claimant's work activities in July 2002 did not appear to aggravate the compensable injury given the physiotherapist's report of no objective changes and that these work activities would not have caused further injury. The advisors were of the opinion that on balance there was little on file to suggest that the claimant could not follow through on the return to work program and deconditioning at this time was related to the claimant's inactivity.
In a letter dated January 8, 2003, Rehabilitation and Compensation Services determined that the WCB would not accept responsibility for wage loss benefits beyond July 13, 2002. Compensation Services was of the view that there was no longer a relationship between the compensable accident of January 28, 2002 and the claimant's condition. The decision noted that:
- The file was reviewed several times in relation to the claimant's work capabilities and a thorough examination at the WCB was performed. Based on the medical evidence restrictions were established, a return to work program was developed and it was expected that the claimant would resume full-time regular duties on completion of the GRTW program;
- The duties performed by the claimant during the return to work program were reviewed along with the medical information. It was determined that these duties did not cause re-injury and the claimant was capable of continuing in the return to work program;
- While the CT scan indicates some disc bulging, this does not support an inability to work as there was no clinical findings to suggest radiculopathy, impingement or anything of significance, which would prevent the claimant from working; and
- Both the WCB physiotherapy consultant and the WCB medical advisor who reviewed the medical information in its entirety were of the opinion that the claimant would have been capable of participating in the graduated return to work program.
The WCB orthopaedic consultant reviewed the file in February 2003. The consultant was of the opinion that the most probable diagnosis of the injury sustained by the claimant on January 28, 2002, was a musculoligamentous sprain/strain of the lumbar spine. With respect to a possible disc injury, the consultant noted that it was without protrusion and there were no reported neurological signs or symptoms at that time. The consultant was of the view that there was no medical contraindication to the claimant returning to unrestricted work activity by July 15, 2002. The consultant indicated that after 1 year it was unlikely the claimant was still suffering from the effects of the injury sustained on January 28, 2002.
On February 21, 2003, the Review Office determined, after noting the opinion of the WCB orthopaedic consultant, that there was insufficient evidence of any significant back injury to warrant ongoing disability beyond July 15, 2002. On April 22, 2003, the union representative appealed the Review Office's decision and a hearing was convened.
Evidence at Hearing
A hearing took place before this Panel on September 24, 2003. The claimant was present together with the union representative. The employer's representative was also present. Both parties provided written submissions.
At the hearing the claimant explained that when he began the GRTW program in June 2002, he was placed in modified duties as a helper on the delivery trucks. According to the claimant, his back pain gradually worsened. On one occasion contrary to the GRTW program, he was sent out to drive and deliver alone and his back felt very sore. On another occasion he worked as a helper for a 12-hour shift. The claimant discontinued the GRTW on July 9, 2002 due to increased pain and was given sedentary office duties until July 19, 2002. The claimant testified that he was taking Tylenol 3's until shortly after he stopped the GRTW program. He has continued to see his physician monthly. The claimant explained that since he has been away from work his back is still sore and he has good and bad days. He advised that he has difficulty shoveling snow. He described his previous day's activities as including cutting the grass.
The claimant advised the panel that he was involved in a car accident in February 2003 sustaining injury to his neck, lower, middle and upper back and he received physiotherapy treatments after this accident. The claimant advised that at present his back is no worse than it was prior to the motor vehicle accident.
Additional Evidence
The Panel met following the hearing and determined that it would be relevant to request a full narrative report from the claimant's physician and a copy of the claimant's Manitoba Public Insurance ("MPI") file. The Panel received a report from the claimant's physician dated October 27, 2003 and the MPI file, copies of which were provided to the parties. The MPI file included a report from the physiotherapist that had treated the claimant from July 2 until August 27, 2002. A further submission was received from the employer's representative. No response was received from the claimant's representative.
The report from the claimant's physician's outlined the claimant's treatment and progress from January 31, 2002 until October 7, 2003. According to the report, by March 2002, the claimant's pain was resolving with improving mobility, forward flexion revealed his fingertips reached his ankles and he was advised to return to modified work. When the claimant was examined on July 9, 2002 the physician states as follows:
"He was pretty much doing everything, but noticed increasing pain with work and pain in his left posterior thorax. He noted also that he was stiff and sore in the morning upon awakening and he would loosen up with movement, although certain movements would aggravate the pain. There, once again, was no noted radiation of pain to his legs. Straight leg raising was 45 degrees on the left and 35 degrees on the right. Range of motion revealed fingertips reached to his lower one-third of his shins on forward flexion at the waist and extension was 5-10 degrees. On lateral flexion his fingertips reached the joint lines of his knees bilaterally. He was advised to perform sedentary work and attend physiotherapy."When examined again on August 7, 2002, the physician notes as follows:
"His fingertips reached his proximal one-third of his shins with normal extension at the waist as well as lateral flexion. Straight leg raising was 80 degrees on the left and 70 degrees on the right with ankle dorsiflexion. His right straight leg raising was reduced to less than 60 degrees. There was no crossover pain."The physician's next entry refers to a visit on December 23, 2002, when the claimant "stated he was stiff and he wondered if this was due to snow shoveling." The physician notes that he advised the claimant that he might consider returning to full duties if further physiotherapy was rejected by the WCB.
Following the car accident of February 4, 2003, the physician examined the claimant three times in March noting that by March 26, 2003, the claimant's neck was normal with full range of motion. He still had low back pain with his fingertips reaching to his mid shin, but other range of motion at his waist was reasonable and he felt his pain was improved. He was seen on April 21, 2003, July 1, 2003 and not again until October 7, 2003, at which time he stated he still had a sore back. The claimant's fingertips could reach his mid shin, extensions at the waist were full, neurological examination was normal with full straight leg raising. The claimant's physician concludes that with regard to future treatment, he has no further recommendations. His diagnosis of the claimant's condition "is that of a discogenic low back pain as a result of work injury and this has become more of a degenerative disc disease with resultant back pain as a result of his initial injury."
Reasons
The issue in this appeal is whether the claimant's back problems continue to be related to his employment or to a pre-existing condition.Section 4(1) of The Workers Compensation Act (the "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. The WCB is not responsible for providing benefits for disablement resulting solely from the effects of a worker's pre-existing condition, as a pre-existing condition is not a "personal injury by accident arising out of and in the course of the employment."
In applying Section 4(1) of the Act, the Panel is also bound by the policies approved by the WCB Board of Directors1. WCB Policy 44.10.20.10 deals with pre-existing conditions. Paragraphs 1.(a) and (b) of this policy provide as follows:
1. WAGE LOSS ELIGIBLITY
The evidence indicates that the claimant suffered a compensable injury on January 28, 2002, when he slipped and injured his lower back while at work. The injury was diagnosed as a back strain with expected full recovery following physiotherapy within 6 to 8 weeks.(a) Where a worker's loss of earning capacity is caused in part by a compensable accident and in part by a non compensable pre-existing condition, or the relationship between them, the Worker's Compensation Board will accept responsibility for the full injurious result of the accident.
(b) Where a worker has:
1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity; and
2) the pre-existing condition has not been enhanced as a result of an accident arising out of and in the course of the employment; and
3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.
By the end of March 2002, the medical evidence from the claimant's physician and the WCB physiotherapy consultant indicated that the claimant's back pain was resolving with improved mobility, but he continued to complain of worsening back pain with lifting and he remained on light duties at work. By the end of June 2002, the WCB physiotherapy consultant and WCB medical advisor were of the view that there were minimal objective lower back findings other than deconditioning and the claimant was ready to begin a GRTW program with ongoing stabilization physiotherapy, leading to a return to full duties by July 15, 2002.
The claimant began the GRTW program but stopped on July 9, 2002 due to worsening pain symptoms. When a CT scan was performed for the first time on November 24, 2002, evidence of degenerative disc changes in the L4-L5 and L5-S1 area were revealed.
The preponderance of medical evidence, including the opinions of two WCB medical advisors, the WCB physiotherapy consultant and the WCB orthopaedic consultant, support a conclusion that the claimant's condition was caused by a low back sprain/strain with an underlying degenerative disc disease, which played a role in his slow recovery. These medical experts were of the opinion that examination findings following the injury on January 28, 2002 did not correlate to a disc injury being the cause of the claimant's inability to work at that time. While a conflicting opinion was expressed by the sports medicine specialist who suspected a disc injury with a resolving lumbar radiculopathy in August 2002, the Panel is of the view that the subsequent opinions of the three specialists who had the opportunity of reviewing the CT scan with the noted degenerative changes and all of the clinical findings on file is to be preferred. In particular, the medical evidence indicated that there was no disc protrusion, or reported neurological signs or symptoms.
The Panel is of the further opinion that the weight of the evidence indicates, on a balance of probabilities, that the claimant's initial low back strain had almost completely resolved when he began his GRTW program at the end of June 2002. By June 27, 2002 both the WCB medical advisor and physiotherapy consultant were recommending that the claimant return to full time regular duties following a stabilization program. The balance of the evidence supports a conclusion that by the end of June 2002, the claimant had recovered from his lumbar strain and any residual problems were related to his pre-existing condition, which is non compensable.
The Panel is of the further opinion that the preponderance of evidence indicates that the claimant suffered a temporary aggravation2 of his pre-existing degenerative disc disease while performing duties during his GRTW program. The Panel notes that on July 9, 2002 the claimant's physician indicated significant restrictions in the claimant's straight leg raising, which had decreased from 80° to 45° on the left and to 35° on the right. The claimant's physician had neglected to insert these findings in his progress report, which likely accounts for the later opinions on file that there was no medical evidence to support an aggravation of the claimant's condition. However, the physician noted these findings in his report to the Panel dated October 27, 2003 and the Panel confirmed that these findings appeared in the physician's examination notes, which were included in the MPI file.
As the claimant's inability to continue to work after July 8, 2002 was caused in part by the effect of a compensable accident (the "GRTW accident") on a pre-existing non-compensable condition, the claimant is entitled to further benefits until he recovered from that accident.
The Panel is satisfied that on the balance of probabilities, the evidence indicates that by August 7, 2002, the claimant had recovered from the temporary aggravation of his pre-existing condition caused by the GRTW accident. The Panel relies on the report of the claimant's physician, which indicated a significant improvement when the claimant was examined on August 7, 2002 with respect to his straight leg raising tests with normal extension at his waist as well as lateral flexion.
The Panel also notes the report found on the MPI file from the physiotherapist who treated the claimant from July 2 until August 27, 2002. In this report the physiotherapist indicates that by the end of treatment, the claimant had close to full range of motion. The physiotherapist also notes that the claimant's range of motion would fluctuate with sometimes being full and occasionally being mildly restricted. This would appear to be consistent with the existence of an underlying degenerative condition.
Based on the minimal clinical findings, the mechanism of injury and the medical opinions on file, the Panel is of the opinion that any problems that the claimant had subsequent to August 7, 2002 are, on a balance of probabilities, not work-related but rather, due to the pre-existing non-compensable back problem.
The claimant is therefore entitled to wage loss benefits from July 13, 2002 to August 7, 2002, less any amounts he may have already received for having worked during this period.
Footnotes
1 See Section 60.8(6) of the Act.
2 See WCB Policy 44.10.20.20, which defines an aggravation as a temporary effect and an enhancement as a permanent worsening of a pre-existing condition.
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 14th day of January, 2004