Decision #33/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on January 26, 2004, at the employer's request. The Panel discussed this appeal on the same day.

Issue

Whether or not responsibility for the temporary aggravation to the worker's neck, back and knees should be accepted.

Decision

That responsibility for the temporary aggravation to the worker's neck, back and knees should be accepted.

Decision: Unanimous

Background

During the course of his employment as a raise miner on March 29, 1997, the claimant sustained a crush injury to his left foot. The Workers Compensation Board (WCB) accepted responsibility for the claim and various types of benefits and services were provided to the claimant. The claimant has permanent restrictions as a result of his compensable left foot injury and is presently involved in a vocational rehabilitation plan to obtain his license as a school bus driver. The claimant also has several prior claims with the WCB for lumbosacral strain/sprain injuries sustained in the workplace.

In 1999, the WCB made the determination that the claimant's back problems were not related to either his 1996 or 1997 claims as the medical evidence suggested that his problems were likely related to pre-existing degenerative changes.

With respect to the issue under appeal, file information revealed that the claimant was relating the pain in his low back, neck and both knees to his uneven gait as a result of his compensable left foot injury. Medical reports on file from his treating physicians have suggested that the claimant required a Gen II unloader brace and a lumbosacral corset for his back due to his left foot pain, bilateral knee pain and low back pain that radiated into his neck. Opinions were also expressed that the claimant had myofascial pain syndrome and that he had aggravated his left foot and leg as a result of driving a bus with a clutch.

Following consultation with the WCB's healthcare branch, primary adjudication wrote to the claimant on July 18, 2002. The case manager indicated that when considering a claim for recurrent difficulties where there had been no further injury or accident at work, entitlement to benefits depended on medical evidence and other information proving that the recent disability was related to a previous injury which "arose out of and in the course" of a worker's employment. In the opinion of Rehabilitation and Compensation Services, such a relationship had not been shown to exist. It was therefore concluded that the WCB was not accepting responsibility for the claimant's recent neck, back and knee complaints.

On October 18, 2002, the case was considered by Review Office following receipt of an appeal from the claimant. Review Office concurred with the opinions expressed by several consultants with the WCB's healthcare branch that the claimant's back, neck and knee complaints were not specifically related to the claim for a left foot injury. "The back problem in particular preceded this accident as noted by x-rays taken prior to this claim which showed degenerative disc disease to have already been present. Having said this however it was (sic) must be recognized that the worker is apparently aggravating his neck and back along with his knees by driving a bus specifically equipped with a clutch which the worker would depress using his left foot. It would appear that all of the worker's treating practitioners have expressed their reservations about this worker becoming a bus driver particularly if it involved driving a bus with a clutch." Review Office was of the view that the claimant's training on the bus that had a standard transmission had caused the claimant to aggravate his knees, his back and neck. In Review Office's opinion, responsibility should therefore be accepted for the worker's neck, back and knee complaints on an acute aggravation basis. In March 2003, the employer disagreed with Review Office's decision and an oral hearing was arranged.

Reasons

Review Office clearly outlined in its October 18th, 2002 decision that the worker’s neck, back and knee complaints were not specifically related to the claim for his left foot injury. However, Review Office concluded based on the evidence that the worker nevertheless aggravated “his neck and back along with his knees by driving a bus specifically equipped with a clutch which the worker would depress using his left foot. Review Office considers that the worker’s training on the bus that had a standard transmission has caused the worker to aggravate his knees.”

A physical medicine specialist examined the claimant at the request of the treating physician on April 24th, 2002. In his reporting letter, the specialist recorded these comments:

“Examination revealed tenderness of the musculature of his back, neck and left thigh with restriction of range of motion of his lumbar spine. There is crepitus in the left knee, medial compartment, more than lateral and in the right patella femoral joint with the scar across the dorsum of the left foot.”

A few weeks subsequent to the foregoing report, the treating physician advised the claimant’s case manager of the following:

“In all likelihood a lot of his problems would stem from the previous accident he had. He is unable to walk without a limp, having to shift the majority of his weight to his right leg due to ongoing pain and discomfort in his [left] foot. I strong (sic) suggest that the early onset of signs and symptoms of osteoarthritis in the right knee is due to the overuse of his right leg as a compensatory mechanism due to the pain and discomfort of his left foot.

Similarly he has been having complaints of ongoing neck and back pain for which I have seen him numerous times. Also seen in this area there is a scoliosis of the spine towards the right which would also be in keeping with him (sic) shifting his body weight over to the right in order to cause less pressure and therefore decrease his level of pain and discomfort on his left foot.”

On June 14th, 2002, an orthopaedic consultant to the WCB reviewed the claimant’s file and reflected in a memorandum to file:

“From review of the file he appears to have problems with his foot using the pedals (standard transmission). This also would likely aggravate his knee discomfort. I think driving a bus would also bother his lower back and neck.”

Also of considerable note are the findings of a second WCB orthopaedic consultant, who examined the claimant on April 1st, 2003.

“This interview and examination has presented a surprising change in the claimant’s symptoms and function compared to the information currently on file. In my opinion, based upon this examination, there is no evidence of loss of function in the lumbar spine, or either knee joint, which could be related to the workplace injury of the left foot, nor is there evidence of any continuing aggravation of pre-existing degenerative changes in the lumbar spine and right knee joint.”

After carefully reviewing all of the evidence, we fully agree that the claimant’s neck, back and knee difficulties are not directly related to his compensable left foot injury. We find based on a preponderance of evidence that the claimant’s bus training did, on a balance of probabilities, aggravate his knees, neck and back. However, these aggravations were temporary only and according to the WCB orthopaedic consultant’s examination of April 1st, 2003 these difficulties have in fact resolved. In conclusion, we are of the view that responsibility for the temporary aggravation to the worker’s neck, back and knees should be accepted. Accordingly, the employer’s appeal is hereby dismissed.

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 8th day of March, 2004

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