Decision #106/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on July 7, 2004, at the request of a claims consultant, acting on behalf of the claimant. The Panel discussed this appeal on the same day.

Issue

Whether or not the claimant is entitled to further benefits beyond November 5, 1998.

Decision

That the claimant is not entitled to further benefits beyond November 5, 1998.

Decision: Unanimous

Background

On June 12, 1998, the claimant reported injuries to her head and back when she accidentally fell from a ledge during the course of her employment as a janitor.

The claimant sought medical treatment from her family physician on June 16, 1998 and was diagnosed with a scalp laceration and a low back strain. X-rays of the lumbar spine dated June 26, 1998 revealed degenerative changes throughout the lumbar spine, most marked at L4-L5 and L5-S1. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to the claimant commencing June 13, 1998.

On September 1, 1998, the claimant was assessed by a WCB medical advisor who reported that the claimant's head injury was getting better and her headaches were getting less. He believed that the claimant suffered from a musculoskeletal strain superimposed on underlying significant osteoarthritis. He further stated, "Given her degree of arthritis and her age, it may take some time to get her fit enough to return to work. I do believe, however, that attempts should be made within the month to attempt at least a graduated return to work, starting with working two hours a day for one week and then increasing this by one hour per day per week until she is back to full working time."

In a letter dated September 24, 1998, the claimant was advised by the WCB that based on the medical advisor's findings, she was considered to have essentially recovered from the effects of her workplace injury and was capable of a graduated return to work program over a six week period. As her employer was unable to accommodate this return to work program, the claimant was advised that she would be paid benefits up until November 5, 1998 inclusive and final.

In an undated letter to the WCB, the claimant stated that she returned to work on November 5, 1998 but due to her injuries she was only able to work a total of 1 hour, 15 minutes, before she was advised to see her doctor.

On December 17, 1998, the treating physician advised a WCB adjudicator that she was unable to say whether the claimant's current problems were due to the compensable injury or to her pre-existing condition. The physician commented that the claimant had "really bad degenerative changes to her back and left hip". She felt that the claimant's pre-existing condition may have been "triggered" by the compensable injury and that the claimant was not fit to return to work.

In a letter addressed to the claimant dated February 5, 1999, a WCB review officer confirmed the WCB's previous decision that the claimant was not entitled to benefits beyond November 5, 1998. The review officer believed that the weight of evidence supported that the effects of the workplace injury did not contribute significantly to the claimant's symptoms or loss of earning capacity after November 5, 1998 and that the probable cause of her symptoms was due to her pre-existing condition which had not been caused or enhanced by the work related accident.

On September 12, 2003, the case was again considered by Review Office based on further medical evidence which had been placed on file. The evidence consisted of a CT myelogram report dated June 9, 1999 and a report from an orthopaedic specialist who had examined the claimant on June 20, 2003. The Review Office also consulted with a WCB orthopaedic specialist concerning the claimant's condition and the specialist's response to questions posed by Review Office is dated August 12, 2003.

The Review Office confirmed with the claimant that benefits were not payable beyond November 5, 1998. Review Office felt that on a balance of probabilities, there was insufficient medical evidence to support the contention that the worker had not recovered from the compensable strain injury of June 12, 1998 by November 5, 1998. Review Office stated the medical evidence confirmed that the claimant had significant difficulties with low back and spasms reported by her attending physician from February 16 to April 15, 1998, which were diagnosed as 'low mechanical back pain due to severe degenerative changes of the L-S spine'.

On April 29, 2004, a claims consultant, acting on behalf of the claimant, appealed Review Office's decision of September 12, 2003 and an oral hearing was arranged.

Reasons

At the time of the compensable incident (June 12th, 1998), the claimant sustained a relatively minor injury (a scalp laceration requiring 3 stitches and a strain to the lumbar spine). Lumbar spine x-rays taken prior to the compensable incident revealed the following findings: Anterior and lateral osteophytes at L1-2, L3-4, L4-5 and L5-S1. These findings are consistent with degenerative disc disease and establish that this condition pre-existed the compensable injury. Also of note is the fact that the claimant's non-compensable pre-existing degenerative disease had become more severe by the time of her compensable accident. An x-ray taken on June 26th, 1998 exhibited severe degenerative changes in the lower apophyseal joints as well as marked degenerative changes throughout the lumbar spine at L4-L5 and L5-S1. We find that the claimant's pre-existing multilevel degenerative disc disease and osteoarthritis of the lumbar spine was, on a balance of probabilities, only temporarily aggravated and not enhanced and/or accelerated by the effects of her compensable injury.

In arriving at our decision, we attached considerable weight to the medical evidence provided by the treating physician in his letter of November 25th, 1999 to the WCB, in which she states:
  • Mrs. [the claimant] has been a patient of mine since June 1, 1995.

  • May 15, 1996 - complaining of low back pain for one week.

  • February 16, 1998 - complaining of low back pain and sore left knee.

  • April 15, 1998 - the patient was diagnosed with low mechanical low back pain due to severe degenerative changes of the LS spine.
Additionally, we accept the opinion of a WCB medical advisor, who concluded that the claimant sustained a musculoskeletal strain superimposed on underlying significant osteoarthritis and that this strain had resolved by the time benefits were terminated. It is also interesting to note that the claimant did not present with neurological symptoms until March of 1999 and that these symptoms were not in play at the time of the compensable injury.

After having considered all of the evidence, we find that the claimant is not entitled to further benefits beyond November 5th, 1998. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
W. Leake, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 25th day of August, 2004

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