Decision #110/04 - Type: Workers Compensation
Preamble
A non-oral file review was held on July 29, 2004, at the request of a worker advisor, acting on behalf of the worker.Issue
Whether or not the worker is entitled to wage loss benefits and medical aid beyond September 1, 2002.Decision
That the worker is not entitled to wage loss benefits and medical aid beyond September 1, 2002.Decision: Unanimous
Background
During the course of her employment as a nurse's aid on May 19, 2001, the worker injured her lower back. At the time of injury, the worker was transferring a resident from a wheelchair to a commode when the resident started to collapse. The worker pivoted quickly to stop the resident from falling and felt the left lower side of her back strain.On May 23, 2001, the worker sought treatment from a chiropractor and was diagnosed with an acute strain of the thoraco-lumbar musculature. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.
Subsequent file documentation consisted of medical reports from the worker's family physician and treating chiropractor along with physiotherapy and x-ray results. On September 24, 2001, a WCB medical advisor confirmed the current diagnosis as being mechanical low back pain and that the worker had evidence of a pre-existing condition (i.e. spondylolisthesis, degenerative disc disease, facet arthropathy) which had been aggravated by the accident. Later correspondence on file also revealed that the claimant suffered from other non-compensable conditions such as obesity, depression and respiratory difficulties.
The worker was treated by a physical medicine and rehabilitation specialist (physiatrist) commencing on September 25, 2001. In a report of the same date, the physiatrist outlined his opinion that the claimant had strained the posterior elements, ligaments and muscles as a result of her work injury. Treatment in the form of trigger point needling/infiltration was suggested. In a follow-up report dated January 23, 2002, the physiatrist noted that the claimant continued to have low back and neck discomfort and on December 21, 2001, she started to have numbness on the left side of her body. It was felt the worker would qualify as having chronic pain from soft tissue sources and that she would never be fit to return to the job of a health care aide.
On March 11, 2002, a WCB medical advisor confirmed the current diagnosis as strained ligaments and muscles of the low back (myofascial pain syndrome) and that the worker's back injury had become prolonged because of her pre-accident status, both physically and emotionally. The worker's complaints of numbness on the left side of her body suggested anxiety symptoms.
The case was again reviewed by the above medical advisor on July 18, 2002. The medical advisor provided his opinion that the worker had recovered from the strained ligaments and muscles of her lower back and that preventive restrictions were warranted. He said there had been no evidence of an aggravation or enhancement of the worker's pre-existing condition.
On August 22, 2002, the WCB advised the worker that in its opinion, she had essentially recovered from the effects of her compensable injury and that wage loss benefits would not be provided beyond September 1, 2002. The worker was further advised that the WCB recognized that she had a back at risk and that her case would be referred to the WCB's preventative vocational rehabilitation committee for consideration.
On October 15, 2002, the worker was advised by her case manager that she was not eligible to receive additional services and benefits as provided by the preventative vocational rehabilitation policy. This was based on the fact that the worker was pursuing educational studies towards social work and because she was not returning to the healthcare field which could pose a risk of further injury.
In a letter dated November 4, 2002, a worker advisor, acting on behalf of the claimant, disagreed with the WCB's decisions to deny the worker wage loss benefits beyond September 1, 2002 along with vocational rehabilitation assistance. Included with the submission was a report from the treating physiatrist dated October 22, 2002, which outlined his opinion that the worker's compensable injury had permanently enhanced her pre-existing condition. In the event that the WCB did not reinstate benefits to the worker based on this new medical information, the worker advisor requested the convening of a Medical Review Panel (MRP).
Arrangements were made for the worker to be assessed by a WCB physiatrist on January 30, 2003. Following his assessment, the physiatrist determined that the worker's current symptoms were the results of her weight and degenerative changes and that she had recovered from the effects of her compensable injury.
On April 3, 2003, the WCB confirmed its previous opinion to the worker that she had recovered from the effects of her compensable back injury and that her ongoing symptoms were related to facet degenerative changes, pre-existing spondylolisthesis and postural strain related to her overweight status.
On April 15, 2003, a WCB manager granted the worker advisor's request for a MRP under section 67(4) of The Workers Compensation Act (the Act). A MRP later took place on December 8, 2003, and its final report of February 3, 2004 was shared with all interested parties.
In further correspondence dated February 13, 2004, the worker was advised that the WCB was unable to change its previous decisions of August 22, 2002 or April 3, 2003 based on the following rationale:
"The medical review panel was unable to state if the compensable injury had an effect on your pre-existing condition of Spondylolisthesis at L5-S1 and Spondylosis at L4-5, L5-S1. As well, there were numerous other non-compensable factors as outlined in #11 of their report, therefore on a balance of probabilities, I can not establish ongoing responsibility for your current condition as a result of the compensable injury."On April 30, 2004, the case was considered by Review Office based on an appeal submission by the worker advisor dated February 23, 2004. Following review of all the medical evidence on file, Review Office found "…no evidence to support a condition that a strain occurring on May 19, 2001 was still playing any significant role in functional impairment and loss of income along with subjective complaints of pain beyond September 1, 2002. Review Office is of the opinion that the 15 months of time between May 19, 2001 and September 1, 2002 is ample time for the strain to resolve. When assessing the psychosocial issues as well as the numerous other physical ailments involved in the claimant's overall presentation, Review Office puts far more weight on the non-compensable factors in attempting to explain the claimant's subjective complaints of pain, than it does in the strain injury of May 19, 2001 and thus rules accordingly." In conclusion, Review Office confirmed that responsibility should not be accepted for wage loss or medical treatment beyond September 1, 2002. In May 2004, the worker advisor appealed Review Office's decision and an oral hearing was arranged.
Reasons
In reviewing this claim, we considered the full claim file including the medical reports, Medical Review Panel report and the submissions made on behalf of the worker and employer.The issue before us was whether or not the worker is entitled to wage loss benefits and medical aid beyond September 1, 2002.
The worker adviser submitted, on behalf of the worker, that there is sufficient evidence for the board to continue to accept the worker's claim based on the medical evidence put forth by the MRP. He noted that the majority of the MRP confirmed the worker's time loss up to December 16, 2002 was related to her work injury. He suggested that Policy 44.10.20.10 which deals with pre-existing conditions should be applied to this claim.
In a separate written submission received June 25, 2004, the worker expressed concern that her benefits were terminated due to her enrollment in a university program. She advised that she has found new employment but continues to suffer from the effects of her work injury.
The employer advocate noted that the MRP report contains conflicting information regarding the cause and effect relationship between the worker's current disability and both her work-related injury and pre-existing conditions.
For the worker's appeal to succeed, we must find that the worker continued after September 1, 2002, to suffer a loss of earning capacity due to her work injury. We were not able to make this determination.
We note there are differing views on the impact of the worker's injury after September 1, 2002. There is no certainty as to which position is correct. In making our decision we apply the standard of evidence used by our courts in civil cases, the balance of probabilities. Having considered and weighed all of the evidence we find that it is more probable that the worker had recovered from her work injury by September 1, 2002 than not. We find that it is more probable that any ongoing symptoms and her loss of earning capacity after that date were due to her pre-existing conditions. We have relied upon the following evidence in reaching this decision:
- The injury was initially diagnosed by a chiropractor as an acute strain of the thoracic lumbar musculature and by a medical doctor as a back sprain. A May 24, 2001 report from a physician notes normal movement with some stiffness throughout the back, full range of movement and no neurological abnormality.
- A May 24, 2001 x-ray report notes the worker's has significant pre-existing conditions in her back including mild thoracic scoliosis convex left with spondylosis of thoracic spine, grade one spondylolisthesis at L5-S1 and bilateral pars defect, degenerative disc space narrowing at L5-S1, mild disc narrowing at L3-4 and L4-5 and mild spondylolisthesis of the lower lumbar spine with degenerative facet joint changes from L3 to S1.
- On July 18, 2002 a WCB Medical Advisor reviewed the file and noted that the worker had recovered from the work injury. He found no evidence of an aggravation or enhancement of her pre-existing spinal condition. He referred her to a psychologist.
- On August 28, 2002 the worker was assessed by a WCB Psychological Consultant who provided this diagnosis of the worker's condition:
"1. Likely major depressive disorder, recurrent, moderate severity, currently in remission.
2. Sleep disorder.
3. Possibly anxiety disorder."
The psychologist commented"The claimant is not depressed. She did likely have a major depression over the past year, but this was not related to the compensable injury. It is not clear whether the numbness on the left side of her body is related to her diagnosis of depression. The factors that would impact this question are discussed above. In summary, it is possible, but not likely that these symptoms are related to depression. However, they may be a symptom of an emotional discomfort that she experiences at times of stress and poor coping. She is capable of participating; in work related activities."
- On January 30, 2003 a WCB Physical Medicine and Rehabilitation consultant assessed the worker. While this assessment occurred 6 months after the termination of the worker's benefits, the worker continued to complain of symptoms. The consultant found that her symptoms were likely due to her weight and degenerative changes. He made the following comments:
"There has been receipt of physiotherapy treatment, and chiropractic treatment, with no report of improvement. There does not currently appear to be any signs of depression currently. There was a past history of depression, as well as a long history of migraine headaches. There as well was a past history of episodes of left sided numbness. Some episodes were felt to be migraine equivalent but, with exact aetiology (sic) undetermined. A history was provided of respiratory difficulties that appear to be of a restrictive pattern. Also with unknown exact etiology. There was note as well of significant overweight status. The most recent physical medicine and rehabilitation assessment suggested muscle and ligament involvement, with receipt of no treatment to date. There is report of some improvement since onset. The current clinical examination findings on examination were limited. Objective findings on examination suggested areas of muscle tightness including of the quadriceps, hamstring muscles, and across the hips. The current activity level suggests musculoskeletal and cardiovascular deconditioning present. There was subjective report of tenderness left trunk, buttock, and paraspinal muscles primarily. No evidence currently of active myofascial pain involvement. There was a suggestion of some subjective sensitivity to pressure over the area of the lowest lumbosacral facets bilaterally more prominent on the left. There was only minor irritability with maximal stress. There was no aggravation of symptoms with PA thrust manoeuvres (sic) in a prone position, performed in an attempt to aggravate mechanical symptoms. Some minor, mechanical low back symptoms related to the facet degenerative changes and the pre-existing spondylolisthesis. Postural strain related to the overweight status is likely contributing to mechanical symptoms."
- When asked whether the worker's current condition is a consequence of her workplace injuries the MRP was not able to agree. The majority responded positively. However the only explanation advanced in support of this conclusion was that there is a temporal relationship. The minority found there was no relationship.
- When asked whether the worker's pre-existing condition was aggravated, enhanced or unaffected by the workplace injuries, the MRP responded that it is not possible to answer this with any degree of certainty.
- The MRP also added the following final comment regarding the worker's condition:
"The panel was of the opinion that there were many pre-existing conditions affecting the claimant prior to her being injured. There are past histories of major depressive disorder, sleep disorder, anxiety disorder, chronic lung disease and obesity. It is the opinion of the panel that one or more if these could be contributing to the claimant's failure to recover fully and to her continuing to have pain."
We note the worker was seen periodically by a physiatrist who was of the opinion that the worker had not recovered from the work injury. In our view, this physician does not appear to recognize the impact of the worker's pre-existing conditions, and accordingly we prefer to place greater weight on the other medical evidence that we have reviewed.
We find, on a balance of probability, that the worker's symptoms and loss of earning capacity after September 1, 2002 are not caused by the work injury and that she is not entitled to wage loss and medical aid benefits after this date. We also find that the worker's pre-existing conditions have not been aggravated or enhanced by the work injury on a balance of probabilities. We do not believe that her sprain injury would continue to be symptomatic and that it is more likely that her significant pre-existing condition is responsible for any symptoms she currently experiences. Accordingly the worker's appeal is denied.
Both in her written submission and at the meeting with the MRP, the worker commented that her benefits were terminated because she started training for a new career. We have reviewed the file and found that benefits were terminated for medical reasons. The worker was advised of the termination of her benefits in a letter from the Case Manager dated August 22, 2002. This letter states the worker's wage loss benefits were terminated because "…it is our opinion you have essentially recovered from the effects of your compensable injury."
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 3rd day of September, 2004