Decision #131/04 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on July 22, 2004, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on July 22, 2004 and again on September 13, 2004.Issue
Whether or not the claimant is entitled to wage loss benefits beyond April 4, 2003.Decision
That the claimant is not entitled to wage loss benefits beyond April 4, 2003.Decision: Unanimous
Background
On June 25, 2002, the claimant was assisting a disabled person into bed after her using the washroom facilities when the claimant experienced immediate pain across her entire low back and posterior hip areas. Medical treatment was immediately sought and the claimant underwent numerous laboratory investigations which included thoracic spine x-rays dated July 15, 2002, a CT scan dated August 8, 2002 and an MRI examination on October 16, 2002.In a file review dated October 16, 2002, a WCB medical advisor noted that the MRI findings revealed compromise of the right L5 root and that the claimant's symptoms were predominantly left sided. There was no evidence of disc pathology. The medical advisor said the synovial cyst found on the MRI was a pre-existing degenerative condition.
On December 5, 2002, the claimant was examined by a WCB medical advisor to determine the diagnosis with respect to her ongoing back symptoms. Following the assessment, the medical advisor stated that she was unable to confirm a diagnosis at this point and that further tests were warranted. She stated that the major concern was with the neurological deficits noted on the right lower extremity.
Several reports were received from an orthopaedic specialist who had examined the claimant commencing January 17, 2003. In a report dated January 30, 2003, the specialist outlined his opinion with respect to the findings of the CT scan dated August 8, 2002 and of an MRI examination dated October 16, 2002.
Following review of the file information along with a report by the attending physician dated February 21, 2003, a WCB medical advisor outlined his opinion that the claimant's ongoing symptoms were more likely related to her pre-existing condition and not to the compensable injury. He noted that the synovial cyst was pre-existing and would cause right sided symptoms.
On March 18, 2003, the claimant commenced a graduated return to work program with the accident employer. On March 27, 2003, the claimant advised her case manager that she was having a lot of difficulties with the program and that walking was difficult. The claimant described right sided pain to the back of her legs and numbness in her toes.
In a decision dated March 27, 2003, the claimant was advised that her wage loss benefits would end effective April 4, 2003 as it was the WCB's position that her current disability was the result of a pre-existing condition which had not been enhanced or accelerated by the compensable injury.
On July 26, 2003, a worker advisor, acting on behalf of the claimant, provided the WCB with additional medical information received from the treating orthopaedic specialist dated July 2, 2003. It was the claimant's contention that this report supported her position that she sustained an enhancement or acceleration of her pre-existing low back condition as a result of her compensable injury. In a response to the worker advisor dated August 6, 2003, a WCB case manager stated the following:
"I concur the compensable injury may have aggravated the pre-existing condition. However, Ms. [the claimant] most recent complaints are now right sided. Given symptoms now differ from the original accident I am unable to establish a relationship between the compensable injury and her current complaints. As a result, I would not consider an enhancement occurred."Following receipt of an appeal by the claimant dated September 5, 2003, Review Office referred the case to a WCB orthopaedic consultant for an opinion with respect to the claimant's ongoing low back and leg symptoms and its relationship, if any, to the compensable injury. The response from the orthopaedic consultant is dated November 4, 2003.
On November 7, 2003, Review Office ultimately determined that there was insufficient evidence to support the notion that the claimant's ongoing symptoms and loss of earning capacity were related to her June 25, 2002 compensable injury. Review Office based its decision on the information that was received from the claimant's treating physician and orthopaedic surgeon along with the evidence found on the CT scan and MRI results, and that of the WCB's orthopaedic consultant dated November 4, 2003. On May 31, 2004, the worker advisor appealed Review Office's decision and an oral hearing was arranged.
Following the hearing on July 22, 2004, the Appeal Panel requested and obtained additional information from the claimant's treating neurosurgeon which was forwarded to the interested parties for comment. On September 13, 2004, the Panel met further to discuss the case and to render its final decision with respect to the issue under appeal.
Reasons
As the background notes indicate, the claimant injured her lower back on June 25, 2002 while assisting a patient onto a bed after her using the washroom facilities. The claimant stated that she felt immediate pain across her entire low back and into her posterior hip area. According to the medical reports provided, a current diagnosis remained unclear; however, the claimant’s treating physician reported the following: “She is in good health. Pain goes into the left leg. The concern is that she has a weakness in dorsiflexion of her left big toe. It looks like there is compression of L5.” Radiological testing was subsequently ordered.
A CT scan of the claimant’s lumbar spine was conducted on August 8, 2002 and revealed as follows: “There is mild disc bulging in the foramina on the right side at this level. I suspect this may represent a small free fragment of disc. There is no other central or lateral spinal stenosis or disc herniation identified. Facet OA [osteoarthritic] changes are present at L4,5 and L5,S1. Impression: Free disc fragments suspected on the right side of L4,5 disc level impinging on the thecal sac and possibly the traversing nerve roots at this level.”
A WCB medical advisor arranged for the claimant to undergo an MRI of her lumbosacral spine on October 16, 2002. The radiologist recorded these findings: “Facet arthropathy with associated synovial cyst of the right L4-L5 facet joint. There may be right L5 root compromise by the synovial cyst/inflammatory soft tissue.” Approximately seven weeks later, the same medical advisor called the claimant in for an examination and in her examination notes chronicled several noteworthy clinical observations.
“She had full side flexion bilaterally but felt pain on the right low back area when flexing to the right side. She was able to do both toe- and heel-walking, although heel-walking caused pain in her right low back and was quite unsteady. Trendelenburg’s test was negative, but she had a great deal of difficulty standing on her right leg. She described this again as feeling like her body would not support her on that side. Figure 4 testing of the S.I. joints caused significant pain when testing the right side. She had a global decreased sensation of the entire right lower extremity. Left leg sensation was normal. Left leg muscle testing was normal. Right leg muscle testing was globally weak, specifically with ankle dorsiflexion, knee flexion and extension, and hip flexion and extension. The major concern is with the neurological deficits on the right lower extremity.”
The treating physician referred the claimant for an orthopaedic assessment in January 2003. The specialist provided the treating physician with a report dated January 30, 2003.
“CT scan Brandon Health Centre August 8, 2002: L3/4 is normal, at L4/5 on the right there is a mass lesion on the right side which appears to be coming more from the facet joint on that side than it does from a disc per se. There is no evidence of a disc herniation at L5/S1. Facet joints are arthritic at L4/5 and L5/S1.
MRI Lumbosacral spine St. Boniface 16 October 2002. There is no specific disc herniation in the lumbar spine. There is good preservation of disc depth, most of the disc seem (sic) reasonably hydrated which is unusual when the facet joints posteriorly at L4/5 and 5/1 are arthritic. The mass occurring on the right side seem again to be coming from the right L4/5 facet joints and when (sic) be in keeping with a synovial cyst. The cyst is actually quite large and does compress the dural sac, it is unknown what it might be doing to the exiting nerve root.
The fact that she could straight leg raise bilaterally to 90 degrees probably reflects clinically there is no significant entrapment occurring.”
We note that the claimant’s compensable accident involved not her right side, but rather, it involved her left side. The earliest information on file recorded acute left sided symptoms of the low back. Ongoing medical examinations and tests revealed arthritic facet joints of the lumbar spine as well spondylosis at the thoracolumbar levels. In approximately November 2002, the claimant presented with persistent right sided lower back difficulties for the first time. Since this time, all subsequent testing and examinations relate the claimant’s ongoing right sided difficulties to degenerative and arthritic changes. In this regard, we accept the opinion expressed by a WCB orthopaedic consultant in a memorandum dated November 4, 2003, in which he outlines the diagnosis of the claimant’s ongoing low back difficulties as being: “Degenerative arthritis facet joints lumbar spine noted on C.T. & MRI. Degenerative disc disease (spondylosis) lumbar spine & thoracolumbar level.”
We find based on the weight of evidence that it is the claimant’s right sided non-compensable low back problems which are keeping her off work. Therefore, we further find that the claimant is not entitled to wage loss benefits beyond April 4, 2003. 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 6th day of October, 2004