Decision #153/05 - Type: Workers Compensation

Preamble

In An Appeal Panel hearing was held on August 23, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to wage loss benefits beyond January 7, 2005.

Decision

That the worker is not entitled to wage loss benefits beyond January 7, 2005.

Decision: Unanimous

Background

On November 24, 2003, the worker filed a claim with the Workers Compensation Board (WCB) for a lower back injury that occurred during the course of his employment as a service technician on October 20, 2003. On this date, the worker lifted a snow blower to look under it when he felt a pain in his lower back. Subsequent file records revealed that the worker returned to modified duties effective December 3, 2003 but laid off work on December 10, 2003 due to increased lower back pain. The claim for compensation was accepted by the WCB and benefits were paid to the worker commencing October 21, 2003.

Medical information on file revealed the following:
  • October 21, 2003 - Lumbar spine x-rays revealed "…L4 is directed slightly anterior to L5 likely related to facet arthropathy which extends from L4 to the sacrum. There are mild compression deformities within the T11 and T12 vertebral bodies which are probably old. There is mild narrowing of the L2-L3 disc level."
  • November 28, 2003 - Doctor's First Report indicated a diagnosis of mechanical lower back pain. The worker's description of accident or injury was "repetitive bending & lifting". Under "Describe any pre-existing condition that may affect recovery" the physician indicated "gradual exacerbation since May 2003".
  • December 3, 2003 - physiotherapy report indicated that the worker complained of constant pain, worse with sustained activities and extremes of movements and was improving very slowly. The diagnosis rendered was "Musculo-ligamentous lumbar injury, joint irritation, radicular signs".
  • December 16, 2003 - the treating chiropractor diagnosed the worker with a lumbar dysfunction with discogenic bilateral sciatic neuralgia and paraesthesia. He further stated, "It is not unusual for an overweight man of this age with a spondylolisthesis to have a traumatic and possibly prolonged lower back syndrome."
  • January 16, 2004 - CT lumbar spine - the results revealed diffuse bulging of the disc annulus at L2-L3 and L3-L4 with apophyseal joint space narrowing. At L4-L5 there was diffuse bulging of the disc annulus with advanced apophyseal joint osteoarthritis leading to an element of spinal stenosis. No disc herniation was identified. There were no significant abnormalities at L5-S1.
  • January 27, 2004 - the WCB advised the treating physician that the employer was able to provide the worker with modified duties, i.e. bench work, starting at 3 hours per day with restrictions. The treating physician noted on the form that he did not support the return to work initiative.
  • February and April 2004 - ongoing progress reports showed that the worker complained of an exacerbation of lower back pain, leg pain, restricted movements, etc. while participating in the return to work program.
  • May 3, 2004 - an orthopaedic specialist outlined his examination findings and summarized that the worker "…has severe lumbar disc degeneration and posterior articular osteoarthritis and most of his back pain is related to the degenerative changes." The specialist indicated that the worker should lose weight and to continue with his pool exercises and to try to increase his modified duties to full time.
  • May 17, 2004 - a neurologist outlined his opinion that "…there is no evidence of an underlying neurologic damage. He does have mechanical lower back pain and I think much of this could be aggravated by excessive weight. My most important recommendation is for him to lose weight and do exercises. I note that his x-rays show degenerative arthritis and some degree of spinal stenosis at L4-5."
  • July 22, 2004 - a WCB chiropractic consultant and medical advisor examined the worker. The chiropractic consultant was of the opinion that the worker had achieved maximum therapeutic benefit from chiropractic therapy but should increase his physical activity level. Examination by the medical advisor did not reveal any strong evidence towards a nerve root irritation or evidence of spinal stenosis but did show facet irritation in the lumbar spine "which is likely related to his pre-existing degenerative changes. There is also evidence of muscle irritability in the paraspinals and gluteal muscles which reproduced his radicular symptoms into both legs. These difficulties could be related to his initial workplace injury in October 2003. The claimant also was significantly overweight and deconditioned which will also be prolonging his symptoms…"
  • October 18, 2004 - progress report from the treating physician indicated that the worker complained of back pain, left leg pain and right thigh pain along with a sleep disorder. He stated that the worker was not capable of modified work.
  • October 19, 2004 - physiotherapy discharge report indicated "…little to no change with exercise program. Hard to do but he persists. Low back pain constant, worse with forward bending and increased activity. Was tolerating exs [exercise] program better as program progressed."
  • October 28, 2004 - WCB medical advisor stated "On balance of probabilities, the clmt [claimant] has recovered from the effects of the CI [compensable injury]. There were minimal findings on exam to explain an ongoing disability related to CI. Likely ongoing symptoms are related to pre-x factors including degenerative changes in his lumbar spine."
  • December 16, 2004 - progress report from the treating physician indicated that the worker complained of lower back pain on movements and that straight leg raising on the left was 20º with pain.
On January 7, 2005, Rehabilitation and Compensation Services advised the worker that it was the WCB's position that he had recovered from the effects of his compensable injury and that wage loss benefits would be paid to January 7, 2005 inclusive and final. It felt that the worker's disabling condition was the result of an underlying or pre-existing condition which was not enhanced or accelerated by his accident at work. On February 25, 2005, the worker appealed this decision to Review Office.

In a decision dated March 15, 2005, Review Office confirmed that the worker was not entitled to wage loss benefits beyond January 7, 2005. Review Office noted that the medical opinions on file, specifically the opinions offered by the WCB medical advisor, the WCB chiropractic consultant and the orthopaedic and neurology specialists, were all in harmony regarding the significance of the worker's severe degenerative spine and weight problem. According to Review Office, there was no medical opinion to support the conclusion that the worker's ongoing problems had a relationship to the original strain injury.

Review Office considered the case again on May 17, 2005, based on an appeal submission from a worker advisor dated April 28, 2005. After reviewing all file evidence which included the new information provided by the worker advisor, Review Office concluded that its original decision of March 15, 2005 would not be altered. On May 24, 2005, the worker advisor appealed Review Office's decision and an oral hearing was arranged.

Reasons

As a consequence of his compensable incident, the worker was diagnosed as having sustained a mechanical lower back pain injury. We find based on the preponderance of evidence that the worker had, on a balance of probabilities, recovered from the effects of his compensable injury by the time his WCB benefits were terminated and that his continued low back symptoms were predominantly related to his pre-existing degenerative disc disease and osteoarthritis and not to the compensable injury. In addition, we further conclude that the compensable injury neither enhanced nor accelerated the worker's pre-existing condition.

In arriving at these conclusions, we attached considerable weight to the following body of evidence.
  • October 20, 2003 - mechanism of injury, worker lifted snow blower resulting in sharp pain in lower back which is diagnosed as mechanical lower back pain/low back strain.
  • January 16, 2004 - CT scan lumbar spine, "At L2-L3 there is diffuse bulging of the disc annulus. Osteophyte formation is also noted. No disc herniation is identified. At L3-L4, there is diffuse bulging of the disc annulus with apophyseal joint space narrowing. No disc herniation is identified. At L4-L5, there is diffuse bulging of the disc annulus with advanced apophyseal joint osteoarthritis leading to an element of spinal; stenosis at this interval. No disc herniation is identified."
  • May 3, 2004 letter from the treating orthopaedic surgeon to the attending physician - "In summary he has severe lumbar disc degeneration and posterior articular osteoarthritis and most of his back pain is related to the degenerative changes."
  • May 17, 2004 letter from the treating neurologist to the attending physician - "In my opinion, there is no evidence of an underlying neurologic damage. He does have mechanical lower back pain and I think much of this could be aggravated by excessive weight. My most important recommendation is for him to lose weight and do exercises. I note that his x-rays show degenerative arthritis and some degree of spinal stenosis at L4-5."
  • October 28, 2004 WCB medical advisor memorandum to file - "On balance of probabilities the claimant has recovered from the effects of the compensable injury. There were minimal findings on exam [July 22, 2004 examination of the worker by WCB medical advisor and chiropractor consultants] to explain an ongoing disability related to CI. Likely ongoing symptoms are related to pre x factors including degenerative changes in lower lumbar spine."
We find therefore that the worker is not entitled to wage loss benefits beyond January 7, 2005. Accordingly, the worker's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 28th day of September, 2005

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