Decision #81/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on April 19, 2004, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on April 19, 2004.

Issue

Whether or not the worker is entitled to wage loss benefits beyond July 4, 2002; and

Whether or not the worker's erectile dysfunction is causally related to his workplace accident.

Decision

That the worker is entitled to wage loss benefits beyond July 4, 2002; and

That the worker's erectile dysfunction is not causally related to his workplace accident.

Decision: Unanimous

Background

On June 29, 2001, the claimant was involved in a motor vehicle accident (MVA) when he was struck from behind while waiting to make a turn during the course of his employment as a long distance truck driver. On July 3, 2001, the claimant sought medical treatment from his attending physician and was diagnosed with pain in his neck, back and left shoulder as well as numbness in his left arm. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to the claimant commencing June 30, 2001. Subsequent file documentation revealed the following:
  • July 13, 2001 - a second physician diagnosed the claimant with "left rotator cuff, left shoulder pain, lower back pain".

  • August 9, 2001 - the attending physician reported that the claimant had pain in his left shoulder, arm, elbow, thigh and back and erectile dysfunction.

  • August 20, 2001 - a sports medicine specialist noted that on the date of the MVA, the claimant's left arm jammed between the spokes of the steering wheel as the truck moved forward, twisting his arm and pulling out his left shoulder. The diagnosis rendered was a rotator cuff injury to his left shoulder based on the reported mechanism of injury and the findings of supraspinatus weakness. Regarding the lumbar spine injury, the specialist was concerned about the possibility of a cord lesion or nerve root irritation based on the claimant's reports of erectile difficulties following the MVA collision.

  • September 10, 2001 - the attending physician reports that the claimant has noticed a definite change in his erectile competency since the MVA. It was noted that the claimant's testosterone level was normal.

  • September 24, 2001 - the attending physician noted that the claimant had pain in his left hip, left buttock and left inner groin. The physician noted that another doctor had advised the claimant that a lot of his symptoms were related to diabetes including his erectile dysfunction.

  • September 26, 2001 - the attending physician reported a change in diagnosis to mechanical lower back pain with "? SI jt. Pain". He recommended that the claimant try short haul driving in the city or a trial of one trip per week.

  • September 17, 2001 - CT scan of the lumbar spine revealed degenerative disc narrowing at L3-L4 and no disc protrusion was demonstrated. There were degenerative central osteophytes noted at L3-L4 and L4-L5. The changes were considered more pronounced at L3-L4.

  • October 15, 2001 - the sports medicine specialist commented that the claimant's back pain continued to be a major problem and that it far overshadowed his left arm pain. He recommended that the claimant continue with one trip per week. He further stated, "His increasing pain after returning from his trip would make it unlikely for him to increase the number of trips he is able to perform per week."

  • January 7, 2002 - a neurologist advised the attending physician that the claimant's condition was more of a mechanical back pain. He recommended that the claimant be assessed by a rehabilitation physician. In a letter to the WCB dated January 10, 2002, the neurologist noted that the claimant's problems related to the MVA of June 29, 2001.

  • February 19, 2002 - the claimant underwent a Functional Capacity Evaluation (FCE) at the WCB. The "OUTCOME OF THE EVALUATION" revealed that the claimant's participation was not considered a full voluntary effort, passing 1 of 5 validity checks.

  • Videotape surveillance of the claimant's activities took place between March 16 and March 30, 2002 and on April 9, 2002. Reports concerning the surveillances were placed onto the file on April 8 and April 25, 2002.

  • April 29, 2002 - a specialist from the Pain and Injury Clinic reported that he was not convinced that the claimant had nerve root impingement in the upper or lower extremity based on his clinical examination.

  • May 2, 2002 - a specialist in physical medicine and rehabilitation (physiatrist) was of the impression that the claimant's presentation was consistent with mechanical low back pain associated with radicular symptoms. He noted that the claimant's ability to sit for prolonged periods of time appeared to be limited which would impede his ability to return to work as a long-haul truck driver.

  • May 6, 2002 - the specialist from the Pain and Injury Clinic advised the WCB that he was hopeful that the claimant could return to work once his sleep disturbance and pain complaints were addressed. He estimated that this would be sometime in the next 3 to 6 months depending on his progress with medication.
In a decision dated May 6, 2002, the claimant was advised by his case manager that the WCB was unable to establish a relationship between his erectile dysfunction and the motor vehicle accident of June 29, 2001. It was felt that his condition was a complication of his diabetes.

In a further decision letter dated June 27, 2002, the claimant was advised that his WCB wage loss benefits would be paid to July 4, 2002 inclusive and final. The case manager noted that the initial diagnosis following the MVA of June 29, 2001 was mechanical back strain and that an x-ray taken in July 2001 showed evidence of possible rotator cuff degeneration. According to the specialists' reports on file, the claimant no longer suffered from his mechanical back strain. Following a complete review of the claim, it was the opinion of Rehabilitation and Compensation Services that the claimant had recovered from his work injury based on a lack of evidence to establish an ongoing relationship between his compensable injury and his current condition. This decision was later appealed by the claimant's solicitor who was of the opinion that the claimant's ongoing physical problems were related to the June 29, 2001 injury.

On July 24, 2002, a WCB medical advisor reviewed the case and commented that there was a lack of objective medical evidence to support that the claimant's ongoing physical problems were related to the MVA of June 29, 2001. On July 24, 2002, the solicitor was advised that based on this opinion, no change would be made to the previous decision of June 27, 2002.

Following receipt of a further appeal by the claimant's solicitor dated July 31, 2002, the Section Head of the WCB Healthcare Management Services Division reviewed the file on August 6, 2002. He was of the view that the claimant was suffering from mechanical low back pain which was not directly related to his compensable injury. He believed that the claimant's ongoing low back pain was likely related to pre-existing degenerative disc disease. He was further of the view that the restrictions suggested by the attending physician were reasonable, but should be considered preventive.

On August 7, 2002, the claimant's solicitor was advised that the reports he had submitted dated July 10, 2002 and July 15, 2002 from the claimant's attending physician had been reviewed by the WCB's Section Head of the healthcare department and that it remained the WCB's position that the claimant was suffering from mechanical low back pain which was not directly related to his compensable injury. On August 8, 2002, the solicitor appealed the decision to Review Office.

Prior to considering the solicitor's appeal, Review Office referred the case to a WCB orthopaedic consultant to review the medical evidence on file and to provide comment with respect to the osteophyte noted at the L5-S1 region and its possible relationship to the compensable injury. The consultant's response to Review Office is dated September 26, 2002.

In a decision dated September 27, 2002, Review Office confirmed that wage loss benefits were not payable to the claimant beyond July 4, 2002. Review Office noted that there was no clinical objective medical evidence to explain the claimant's chronic subjective complaints of low back pain. Review Office further stated, "The orthopaedic consultant to Review Office has indicated that a semi being rear ended is not going to have an effect on the claimant's underlying pre-existing conditions other than a scenario of a temporary aggravation. In other words, after a full year on WCB benefits, the orthopedic consultant did not feel that the June 29, 2001 MVA would have any relationship to the claimant's ongoing multiple symptoms. While it is understood that the claimant's degenerative disc disease, osteophyte condition, chronic obesity and deconditioning may all have played a role in the claimant's signs and symptoms, none of the above are compensable. Review Office feels this is a situation where underlying conditions were temporarily aggravated by a compensable MVA but after one year Review Office finds no evidence that such an aggravation is still in effect and thus Review Office supports the decision of Primary Adjudication regarding the claimant's lumbar condition."

On November 19, 2002, the solicitor asked the WCB to consider the claimant for a permanent partial impairment award based on a specialist's report dated October 18, 2002. The solicitor noted that the specialist, "…acknowledged that Mr. [the claimant's] chronic pain related to his compensable motor vehicle accident and its sequela including poor sleep, chronic fatigue, lack of exercise and obesity are all resulting in his erectile dysfunction… .These problems are difficult to argue with. Chronic Pain certainly has been known to be a cause of sexual dysfunction." The solicitor contended that the claimant's diabetes was a red herring insofar as the claimant had been suffering from diabetes for a number of years and that it had been well controlled and had never caused him to suffer erectile dysfunction in the past.

In a response dated November 20, 2002, a WCB case manager advised the claimant and his solicitor that following review of the specialist's opinion, there was no evidence to support a cause and effect relationship between the compensable injury and the claimant's erectile dysfunction, on a balance of probabilities.

In a medical report dated October 23, 2001, a urologist noted that the claimant suffered from erectile dysfunction. The specialist stated, in part, that he was not sure whether the claimant had a neurologic cause for his erectile dysfunction and that he would leave it up to a neurologist to determine. He noted that type II diabetes can be a cause for erectile dysfunction.

On May 8, 2003, a WCB case manager advised the claimant and his solicitor that the report by the above urologist had been reviewed and there was no evidence to support a cause and effect relationship between the compensable injury and the claimant's erectile dysfunction. On May 7, 2003, the solicitor appealed this decision to Review Office.

On May 16, 2003, Review Office determined that a permanent partial impairment award would not be implemented as it was felt that a cause and effect relationship had not been medically established with respect to the claimant's erectile dysfunction condition and the injury of June 29, 2001. After reviewing all the medical information on file, Review Office stated that it could not find any clinical objective medical evidence to support the contention that the condition of erectile dysfunction was related to the claimant's injury of June 29, 2001.

Subsequent file records contained new medical information received from the claimant's treating physician and neurologist. This information was, in turn, reviewed by a WCB medical advisor on June 17, 2003.

In a decision June 18, 2003, a WCB case manager advised the claimant and his solicitor that it was the WCB's opinion that the claimant's ongoing problems were related to his pre-existing degenerative disc disease. The case manager noted that the claimant had left leg symptoms but the small disc herniation was reported to be central and with no nerve root compression. It continued to be the WCB's opinion that the claimant had recovered from his June 29, 2001 diagnosed "mechanical back strain". The case manager noted that there were no signs of radiculopathy when the claimant was examined by other specialists. In addition, the CT scan of September 17, 2001 did not reveal a disc herniation. On June 19, 2003, the solicitor appealed this decision to Review Office.

On July 18, 2003, Review Office confirmed that the claimant was not entitled to payment of wage loss benefits beyond July 4, 2002. Review Office concluded, after reviewing all the medical information on file, that the claimant sustained an aggravation of an underlying condition at the time of his June 29, 2001 accident and that by July 5, 2002, the aggravation would have had a year to resolve and thus would no longer play a role in the claimant's ongoing complaints. On November 28, 2003, the claimant's solicitor appealed Review Office's decisions dated May 16, 2003 and July 18, 2003 and requested an oral hearing. An oral hearing was arranged and took place on April 19, 2004.

Reasons

As the background notes indicate, the treating physician referred the claimant to a neurosurgeon for examination and consultation. In a letter dated May 12th, 2003 to the case manager, the neurosurgeon reported as follows:

“My assessment of the situation is that Mr. [the claimant] has a disc herniation at level L5-S1 with an MRI confirming multilevel degenerative disc disease. These are probably longstanding in nature and are compatible with the patient’s age understanding that degenerative disc disease is ubiquitous in society. The disc herniation at L5-S1 certainly is present and is compatible with the patient’s sciatica and may represent a disc prolapse precipitated by injury. Unfortunately the MRI cannot assess the etiology of the patient’s disc prolapse and therefore one cannot state with any medical certainty whether or not the presence of the disc relates to the injury. However, one must relate the patient’s symptoms preceding the event to thereafter and is to establish a temporal relationship between the two. The disc noted on MRI is compatible with disc injury. My diagnosis is that of degenerative disc disease compounded by an additional disc prolapse.”

The neurosurgeon found the claimant’s persistent sciatica to be consistent with the symptomatology that the claimant presented to his attending physician in August 2001. The claimant presented with general pain radiating into the thigh and groin areas and the neurosurgeon referred to this as non-specific sciatica.

The neurosurgeon was called to testify at the hearing by the claimant’s counsel. We attached considerable weight to the neurosurgeon’s testimony in general and in particular to the following comments:

Q. Okay. I would like you to go over and explain again the difference between the small disc herniation and a disc disruption or annulus tear?

A. Right. They are, in my mind, a spectrum of the same problem. You get - - a disc prolapse implies that the disc has left the confines of its normal anatomical location. So in other words, the disc is no longer confined to the spinal column per se. It now projects into the spinal canal where the elements are. Now that may be due to a tear in the ligament that normally confines this. So if there was a sequestrated disc that would be the case. Or it may be contained, in other it’s still held in place by the ligamental structures. And those contained disc prolapses can only arise if the annulus, which is the securing structure of the disc, has a rent in it of some sort, a blowout if you will like a car tire, and that allows the disc to sag out. Now you can get annulus tears in the absence of prolapse. The ligament may tear, cause a pain complex, usually back pain, without the content of the disc then oozing out, if you will. You can’t get the converse. You can’t get a disc prolapse without having torn that ligament. So it is, in a way, a continuum of the same thing. The little ligament has a rent in it. It may just be back pain or it may be a whole complex of back pain plus leg pain, if there is some pressure arising on the nerves.

Q. So then it would not be uncommon then to have clinical signs of a disc herniation with nerve root irritation and a torn annulus - -

A. Right

Q. - - or a disc disruption?

A. Right, that’s a common thing.

Q. So then the sciatica that Mr. [the claimant] experienced, experiences and the referral of pain down his left leg is compatible with - -

A. H’mm, h’mm, sure.

Q. Both diagnoses?

A. Absolutely.

Q. One final question, and this is with respect to causality. Refresh me if I’m wrong, but I believe you said that a disc prolapse can only be inferred on history with respect to its causality?

A. Right.

Q. Could you just expand that thought just a little bit more, if you could?

A. Okay. We don’t have a litmus test for what the cause is of the disc prolapse, the problem being, one, it’s a very common disease. It’s incredibly common. Two is, the MRI study will show you tissue at that moment in time when you have the patient in the magnet. It gives you no indication about what’s happened historically in the last few days or weeks and, as I say, unless something is physically broken. So it’s impossible based on radiology or even clinical examination to say what caused the disc prolapse, and that’s the difficulty that one always has, how do you know what caused it? Now fortunately for us, it’s usually not relevant. As clinicians we go ahead and treat it regardless of what the etiology is, whether it is because you’ve been sitting your whole life or it’s because you moved a heavy box or you just wake up one morning and you’ve got it. We don’t know that. One infers it from history as to when it happened, because oftentimes patients will tell you, “I bent forward and sneezed and that’s when it happened. I got it”, and they’ll know that day because they’ve never had pain like that before. And patients with injuries may relate the development of the symptoms to a traumatic incident because, first of all, it may have been the cause and, secondly, it may be a moment in time that they recall really well and their symptom complex starts up somewhere in that period and they relate the two things to one another. And who’s to know, aside from that temporal relationship, “I was fine up until today and now I have symptoms”.

Q. So then your opinion with respect to your diagnosis would be largely based on the fact that Mr. [the claimant] was asymptomatic prior to - -

A. Right.

Q. - - to the automobile, MVA accident?

A. Right.

We accept the neurosurgeon’s opinion that the type of injury sustained by the claimant is consistent with the mechanism of injury. In addition, we also note that the claimant appears to continue to re-aggravate his condition each time that he performs his tractor-trailer driving duties. Based on the preponderance of evidence we find that the worker is entitled to wage loss benefits beyond July 4th, 2002. Accordingly, the claimant’s appeal with respect to this issue is hereby allowed.

As to the second issue, there is no convincing evidence of a neurological or psychological condition, which would allow us to make a finding that the claimant’s erectile dysfunction is, on a balance of probabilities, a sequela of his compensable accident. We found a consulting physician’s evidence contained in a letter to the WCB dated October 18th, 2002 to be rather compelling on this point:

“I am in receipt of your letter of October 11, 2002 re Mr. [the claimant]. I have assessed Mr. [the claimant] for erectile dysfunction. Mr. [the claimant’s] erectile dysfunction would seem to be multifactorial in its etiology. It would be difficult to attribute a percentage cause to each of the potential etiologies involved. It is my feeling that the various factors contributing to his problem would include poor sleep, chronic fatigue, possible sleep apnea, relationship conflict, diabetes, dyslipidemia (the latter two appear to be under reasonable control), and chronic pain.”

The claimant was examined by two neurologists and one urologist, none of whom found a physical cause for the claimant’s erectile dysfunction. We note that none of the various contributing factors to the claimant’s erectile dysfunction have been directly related to the compensable injury by either the consulting physician or the treating physician. We find that the worker’s erectile dysfunction is not, on a balance of probabilities, related to his workplace accident. Accordingly, the appeal of this issue fails.

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 4th day of June, 2004

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