Decision #101/05 - Type: Workers Compensation
Preamble
A non-oral file review was held on February 23, 2005, at the request of a worker advisor, acting on behalf of the worker. Following receipt of additional medical information, the Panel discussed the appeal again on May 27, 2005.Issue
Whether or not the worker is entitled to wage loss benefits beyond December 5, 2003.Decision
That the worker is entitled to wage loss benefits beyond December 5, 2003.Decision: Unanimous
Background
In April 2003, the worker contacted the call centre at the Workers Compensation Board (WCB) to report a lower back injury that he attributed to his work activities as a log quality scaler. On April 1, 2003, the attending physician clinically diagnosed the worker with a lumbar disc. On May 12, 2003, the WCB accepted the claim for compensation and benefits were paid to the worker commencing April 28, 2003.Subsequent medical information revealed that the worker was treated by an orthopaedic specialist and underwent laboratory investigations which included a CT scan of the lumbar spine dated May 22, 2003 and an MRI examination of the lumbosacral spine dated August 17, 2003.
In a report to the WCB dated September 15, 2003, the orthopaedic specialist outlined his examination findings of the worker and made the following comments:
The orthopaedic specialist concluded that the worker might benefit from a return to work program."The patient had an MRI which demonstrated that the patient did have a small central and left paracentral disc herniation at the L5-S1 level. I do note however there was no compression of the S1 nerve root. I do note that the disc material was reported as contacting the left S1 nerve root, but no evidence of displacement or compression. The patient did have mild degenerative changes of the right facet joint.
I do note that the mild degenerative changes the patient has could account for some back discomfort. I do note the patient however does not have evidence of any significant nerve root compression nor spinal stenosis. I do note that the patient in my opinion is not a candidate for surgery."
On November 6, 2003, a WCB adjudicator contacted the worker to inform him that it was the WCB's position that he was capable of returning to his pre-accident job duties on a graduated basis. As the worker had no job to return to, the adjudicator advised the worker that the WCB would pay him on a graduated return to work schedule and once it had been completed, it was the WCB's opinion that he had reached his pre-accident status.
Based on the above decision, wage loss benefits were paid to the worker up to December 5, 2003 inclusive.
In February 2004, the worker contacted the WCB to indicate that he was still having back pain and was unable to work.
On January 27, 2004, the orthopaedic specialist reported that the worker was complaining of pain on the lateral side of his lower leg and discomfort in his left buttock. He concluded that the worker did have a disc protrusion and may have some further problems in the future. He stated that the worker would still have difficulty if he attempted to do heavy activities. It was the specialist's impression that the worker "should be able to do the work of a wildlife ecologist."
The case was reviewed by a WCB medical advisor on February 18, 2004. It was his view that the current diagnosis was a small central and left paracentral L5-S1 disc herniation that had now resolved and there was no evidence of nerve root compression. He stated that residual low back pain was common after a disc injury and that the worker's pre-existing degenerative changes may be contributing.
On March 2, 2004, primary adjudication advised the worker that his case had been reviewed by a WCB medical advisor and that it was the WCB's position that he was capable of returning to his pre-accident work as a wildlife ecologist. On March 10, 2004, the worker appealed this decision to Review Office.
A report was received from a neurologist who had examined the worker on April 15, 2004. In his report dated April 27, 2004, the neurologist stated, in part, "The gross sensory exam was unremarkable…his history (not so much his physical findings) are (sic) most suggestive of L5 or S1 radiculopathy, now more or less resolved…I have simply recommended that he lose a bit of weight and gradually increase his exercise…"
The Review Office contacted the worker to gather additional information regarding his job duties as log quality scaler and a wildlife ecologist. A memo pertaining to this conversation is on file dated April 29, 2004.
On June 18, 2004, Review Office determined that the worker was not entitled to wage loss benefits beyond December 5, 2003 and that the worker had recovered from his compensable injury. Review Office felt there was insufficient medical information to conclude that the worker could not resume his pre-accident duties effective December 6, 2003. It was also felt that the work duties described by the worker involved repetitive bending but there was no indication of heavy activities.
In December 2004, the Appeal Commission received an Appeal of Claims Decision form from a worker advisor, appealing Review Office's decision of June 18, 2004. On January 19, 2005, the worker advisor provided the Appeal Commission with a written submission and additional medical information from an orthopaedic surgeon. On January 31, 2005, the accident employer provided a submission to the Appeal Commission outlining its position that the worker was not entitled to further benefits and services beyond December 5, 2003.
On February 23, 2005 a non-oral file review was held. At this discussion, the Panel determined that additional information was required from two of the worker's treating physicians. On May 12, 2005, all interested parties were provided with copies of the medical information that was received by the Panel and were asked to provide comment. On May 27, 2005, the Panel met further to discuss the case and to render its final decision.
Reasons
The Panel was asked to determine whether the worker is entitled to wage loss benefits beyond December 5, 2003. For the appeal to succeed, the Panel must find that the worker's loss of earning capacity after December 5, 2003 was caused by his workplace injury or in other words, that he was unable to work after this date due to the workplace injury. The Panel found that the worker did have a loss of earning capacity after December 5, 2003 due to his workplace injury.Submissions to the Panel
The worker was represented by a worker advisor. In a submission dated January 19, 2005, the worker advisor argued that medical evidence proves the worker could not return to his pre-accident employment as a log scaler. He noted this employment requires excessive bending and working on rough terrain which are beyond the worker's ability.
The worker also wrote to the Appeal Commission. The worker advised that he continued to try to increase his level of home exercise or activity which resulted in physical discomfort or a severe increase of pain and/or numbness in his left foot, left leg, left pelvis area and lower back. He stated that he had worked for 7 years performing field work in forestry and conservation which was very physically demanding. He noted that he could not tolerate walking on uneven ground.
A manager made a written submission on behalf of the employer which outlined the employer's position that the worker is not entitled to any further benefits. The submission notes that the worker is alleged to have told a physician that he is not entirely certain his accident was responsible for the symptoms. The submission also notes the worker was concerned that a recent examination may have aggravated his back injury.
Analysis
The Panel found that the worker continued to have a loss in earning capacity after December 5, 2003 by reason of his workplace injury.
At the time of the accident the worker was employed as a log quality scaler. We note this job requires that he work on uneven ground and involved repetitive bending to measure log lengths and diameters. The work sites are often in remote areas, accessible by poor roads and can involve long walks into the woods.
Diagnostic tests on file confirm that the worker has a disc injury. A CT scan report typed on March 15, 2004 notes "IMPRESSION: A left paracentral disc protrusion is demonstrated at the L5-S1 level…"
We place significant weight on the opinion of the second orthopaedic specialist who examined the worker on October 18, 2004. In a report addressed to the worker advisor dated October 29, 2004 the orthopaedic specialist commented "I am unsure when he would be fit for normal employment. His diagnosis is an L5-S1 disc herniation. He still has sciatic pain shooting down in the distribution of the S1 nerve rot. This has not improved…"
With respect to restrictions, the orthopaedic specialist suggested the worker's restrictions would be to avoid bending at the hips, to avoid prolonged seated positions, to avoid driving across uneven ground such as gravel roads, mud roads, or off road. He was also to avoid lifting heavy objects, probably limited to objects less than 5 kg. We note that the worker's job duties fall outside these restrictions.
This orthopaedic specialist referred the worker to a neurosurgeon for a second opinion on a possible discectomy. The neurosurgeon examined the worker on February 25, 2005, and found the worker's range of motion of the lumbar spine was restricted. There was 60-70% flexion which was associated with pain extending to the left lower extremity. He also found that extension, rotation, and lateral bending was approximately 80%. Straight leg raising was positive at 60% on the left side and negative on the right.
In his consultation report of February 25, 2005, the neurosurgeon noted "The clinical presentation is suggestive of an S1 radiculopathy….which is secondary to the disc herniation in the CT scan."
We find, on a balance of probabilities, that the worker had not recovered from the workplace injury by December 5, 2003 and was not able to perform the duties of a log scaler after December 5, 2003. The worker continued to suffer a loss of earning capacity as a result of the workplace injury after December 5, 2003.
The worker's appeal is allowed.
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 22nd day of June, 2005