Decision #105/04 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on May 26, 2004, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on May 26, 2004 and again on July 8, 2004.Issue
Whether or not the September 6, 2000 compensable injury was a sequela of the May 9, 2000 compensable injury; andWhether or not the claimant had a loss of earning capacity beyond January 15, 2003 in relation to the combined effects of his three compensable accidents.
Decision
That the September 6, 2000 compensable injury was not a sequela of the May 9, 2000 compensable injury; and,That the claimant does not have a loss of earning capacity beyond January 15, 2003 in relation to the combined effects of his three compensable accidents.
Decision: Unanimous
Background
In January of 1982, the claimant was involved in a work related accident whereby he injured his lower back. The claimant described his accident as follows:"I was shoveling snow off a ramp at the rear of the plant. Just as I was about to throw a shovel of snow, approx. 4 ft. in distance and weighing about 20 lbs., I stepped back on a smooth section of steel decking, losing my footing and twisting my lower back."Subsequent medical information diagnosed the claimant with a disc protrusion at the L5-S1 region and disc surgery took place on April 12, 1982. The claimant eventually recovered from his surgery and returned to work on July 12, 1982. On June 4, 1988 the claimant resigned his employment with the employer.
While working with a different employer on May 9, 2000, the claimant injured his left foot. He described the injury as follows:
"I attempted to lift and push the conveyor this end may weight app. 300 lbs, my right foot was planted flat and my left foot was arched to give more leverage, the problem was that I could lift the conveyor but the hydraulic pump was not able to keep the wheel from sliding down. Therefore I was pushing dead weight when all of a sudden there was instance pain in the arch of my left foot, resulting in the injury…".On the same day of accident, the claimant attended a hospital out-patient department and was diagnosed with a ligament injury - plantar fasciitis of the left foot. He was subsequently treated by his family physician and attended physiotherapy treatments with respect to his left foot difficulties. Wage loss benefits were paid to the claimant during his absences from work.
While working for the same second employer on September 6, 2000, the claimant experienced pain in his lower back. He described his difficulties as follows:
"…I was working in a ladder…I had a sharp pain from my lower back down to my left knee, which for a few seconds I had no feeling in my left leg and lost my balance…Since my return to work from my accident in May of this year, I have been experiencing more pain in my lower back and left leg…Since 1991 I have worked app. five years of heavy construction some farm labour work, and now three years at [company name] where on a daily basis I have been loading and piling bags of seed on pallets or into trucks, weighing 50 to 110 each, averaging forty plus tons a day…It is my belief that my back deteriorated from the nature of my work, and this is why I am submitting this claim…"In a memo to file January 23, 2001, a WCB adjudicator documented a telephone conversation that she had with the claimant. The claimant was attributing his current back difficulties (L5 disc) to his 1982 work injury.
On May 10, 2001, the claimant was examined by a WCB medical advisor who offered the opinion that the claimant suffered a new low back injury as a result of the workplace activities he described on May 9, 2000. He further stated, "Initial presentation on that date was in keeping with a strain of the medial arch of the left foot, however, the claimant continued to experience ongoing symptoms with the course of time localized to his lower back and was strongly suggestive of a radicular pattern in keeping with a possible disc lesion at L3-4 radiating to the left leg. This is supported by clinical examination today showing a predominance of L3-4 features which were not present at the time of his original 1982 injury which involved primarily the L5-S1 lumbar vertebrae. The claimant's most recent injury likely is a representative of an aggravation of his pre-existing osteoarthritis along with facet arthropathy plus a likely disc herniation at the L3-4 level as suggested by the vacuum phenomena reported on CT."
In a memo dated June 4, 2001, a WCB adjudicator advised the claimant that based on the WCB examination and the information on file, she was unable to establish a cause and effect relationship between the accident and surgery in 1982 and his current back problems. The claimant was advised that the WCB was currently investigating how his back problems related to his May 2000 injury and/or if there had been a new accident on September 6, 2000 when he felt back pain when he was on the ladder.
In a decision letter dated June 12, 2001, the claimant was advised that the WCB could not relate his current back difficulties with the May 9, 2000 compensable injury. The adjudicator noted that the objective findings following the May 9, 2000 compensable injury were all related to his left foot and there were no findings to correlate with a back injury. The claimant did not mention any back difficulties to his attending healthcare providers or co-workers following the May 9, 2000 compensable injury until his sub-layoff from work on September 6, 2000. The claimant did not seek any medical attention for his back difficulties during that period. In view of this fact, the WCB was unable to accept responsibility for time loss from work or medical treatment beyond June 29, 2000. The claimant subsequently appealed this decision to Review Office.
On September 21, 2001, Review Office determined that the claimant's low back condition, described as having occurred during the course of his employment on September 6, 2000, was to be placed in a new claim file and adjudicated accordingly. Review Office commented that in May 2001, the WCB medical advisor provided objective evidence as to why he did not feel the claimant's problems at that point in time had a relationship to his low back injury of January 16, 1982. The claimant did not have an 18 year history of continuity of symptoms following the surgery as the claimant had been active in the workforce and certainly would not be deemed disabled from back pain during that time frame. With respect to the May 9, 2000 left foot claim, Review Office noted that the medical information for the month of May 2000 was for the left foot only and there was no evidence of a back injury being involved.
Review Office stated that without doubt, the claimant had back symptoms in the summer of 2000 leading up to the ladder incident of September 6, 2000 and that the origin of these lumbar complaints were unknown. After considering all the evidence, Review Office was satisfied that the September 6, 2000 ladder incident should be formally adjudicated by primary adjudication keeping in mind the WCB's pre-existing condition policy.
In a letter dated August 13, 2002, the claimant was advised by his adjudicator that the WCB was accepting responsibility for the aggravation of his pre-existing back condition resulting from his September 6, 2000 ladder incident and that wage loss benefits would be paid for the period commencing September 7, 2000.
On October 1, 2002, the claimant underwent an MRI examination which revealed severe degenerative disc disease at L5-S1 and to a moderate degree at L3-4. Degeneration was also found at the L4-5 level.
The claimant was assessed by a WCB orthopaedic consultant on December 6, 2002. The specialist noted that the treating orthopaedic surgeon reported that the claimant had been involved in a motor vehicle accident in 1976 and a re-injury in 1978. There was marked degenerative narrowing of the L5-S1 disc space noted at the time that the claimant underwent disc surgery in 1982, according to the operative report. The claimant had another motor vehicle accident in 1986 and had intermittent back pain. The MRI and previous imaging studies demonstrated degenerative disc disease at least on three levels of the lower lumbar spine. The orthopaedic consultant felt that the claimant's condition was being exacerbated by his obesity. The consultant felt there were no objective signs of a specific injury related to his accident in September of 2000. He felt that the claimant's symptoms were mainly due to the longstanding degenerative changes in his spine. The consultant felt that the claimant could tolerate light work with no lifting over 20 lbs. Restrictions were considered permanent and related to the degenerative changes in the spine.
On January 10, 2003, primary adjudication advised the claimant that his wage loss benefits would be paid to January 15, 2003 inclusive and final. Based on the orthopaedic examination findings, primary adjudication was of the view that the claimant had recovered from the effects of the compensable injury. On June 25, 2003, a worker advisor, acting on behalf of the claimant, appealed the decision of January 10, 2003 to Review Office and asked Review Office to reconsider its previous decision of September 25, 2001.
Prior to considering the appeal, Review Office sought the medical advice of a WCB orthopaedic consultant. The consultant's responses to Review Office's queries are contained in a memo dated October 9, 2003.
In a decision dated October 17, 2003, Review Office determined the following:
- The claimant's low back condition as of January 16, 2003 was not related to a combined effect of his three compensable injuries.
Review Office was of the opinion that by January 16, 2003, a cause and effect relationship between the 3 compensable injuries and the claimant's subjective complaints of pain had not been established. Review Office noted that the claimant received two years of WCB coverage for the September 6, 2000 low back injury which was ample time for the injury to have recovered to its pre-accident state. The injury was simply a soft tissue strain superimposed on a significant degenerative lumbar spine.
- The September 6, 2000 workplace injury was not a sequela of the May 9, 2000 compensable injury.
Review Office felt it was unreasonable to relate the lumbar back pain which presented itself in mid June 2000 at the earliest to the May 9, 2000, foot injury when the claimant had indicated he had no low back complaints whatsoever during his recovery period from the foot injury.
- The claimant had recovered from the effects of his three compensable injuries as of January 16, 2003, and therefore, Review Office was not convinced that there was a combined effect between the pre-existing degenerative condition in the lumbar spine and the three compensable injuries having played a role in the claimant's loss of earning capacity beyond January 15, 2003.
Review Office did not feel that the 1982 back injury and subsequent surgery was the culprit with respect to the claimant's back complaints as of January 16, 2003.
Review Office was of the opinion that the claimant's problems were due to a non-compensable multi-level degenerative spine with significant weight gain exacerbating the situation.
Following the hearing and after discussion of the case, the Appeal Panel requested additional information from the claimant's treating physiatrist. A report from the physiatrist was later received and was forwarded to the interested parties for comment. On July 8, 2004, the Panel met to render its final decision with respect to the issues under appeal.
Reasons
The claimant initially injured his lower back in 1982. There was no significant medical treatment sought during the 18 year period from 1982-2000. The first mention of any back difficulties did not surface until June of 2000. We note that the claimant's injury of May 9th, 2000 was to his left foot and ankle, which is a completely different anatomical site than his September 6th, 2000 injury to his back. We find that there is absolutely no correlation between these two events. Therefore, we further find that September 6th, 2000 compensable injury was not a sequela of the May 9th, 2000 compensable injury.The claimant was examined on December 6th, 2002 by a WCB medical advisor specializing in orthopaedics. We note in particular the following comments recorded by the specialist in his examination notes of same date:
"The MRI, as well as previous imaging studies, have demonstrated degenerative disc disease at least three levels of the lower lumbar spine. I feel this condition is exacerbated by his obesity. There are no objective signs of a specific injury related to his accident in September of 2000. I feel that his symptoms are mainly due to the longstanding degenerative changes in his spine."We accept the evidence of the medical advisor to Review Office that the claimant's multilevel degenerative disc disease and osteoarthritis as well as the old surgical changes at L5-S1 are not attributable to the "ladder" incident of September 6th, 2000. This opinion is later confirmed by the claimant's treating physical medicine and rehabilitation specialist in his letter of June 15th, 2004 to the Panel in which he states, "The results of both scans indicate that there have been significant degenerative changes in the lower three levels of the lumbar spine (particularly at L5-S1) since at least 2001."
We find that the mechanisms of injury of the claimant's three compensable injuries were not such that any and/or all would have either accelerated or enhanced his pre-existing degenerative disc disease. We further find that the claimant does not have a loss of earning capacity beyond January 15th, 2003 in relation to the combined effects of his three compensable accidents. Accordingly, the claimant's appeal is hereby dismissed.
Panel Members
R. W. MacNeil, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
R.W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 18th day of August, 2004