Decision #181/05 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on July 14, 2005, at the worker's request. The Panel discussed this appeal on July 14, 2005 and again on November 9, 2005.Issue
Whether or not the worker is entitled to payment of wage loss benefits beyond October 13, 2004.Decision
That the worker is entitled to payment of wage loss benefits from October 13, 2004 to November 6, 2004.Decision: Unanimous
Background
On December 21, 2003, the worker injured his lower back region when he slipped on an ice patch during the course of his employment as a night security/truck driver. The Workers Compensation Board (WCB) accepted the claim on the basis of a "lower back strain" and benefits were paid accordingly.File information disclosed that the worker underwent physiotherapy treatments following his accident. A CT scan dated April 13, 2004 revealed bilateral facet osteoarthritis from the L3-L1 levels with no convincing evidence of disc herniation, nerve root compression or spinal stenosis.
Following an examination of the worker on June 30, 2004, a WCB medical advisor found no objective evidence of neurologic dysfunction or myopathy. He felt that the worker's leg complaints were based on lower back pain which limited his function and endurance. The medical advisor believed that the worker would be fit to return to light duties with restrictions following additional physiotherapy treatments.
In a report dated September 16, 2004, the treating physiotherapist reported that the worker had experienced another exacerbation of the right lumbopelvic region with significant right lower extremity radicular symptoms and weakness with no incident.
In a report dated September 22, 2004, the treating physician reported that the worker had been assessed on September 9, 2004 and that he had complained of paraesthesia in his right leg and bilateral tenderness over the sacroiliac joints. He found no evidence of any acute neurological deficit. In view of the paraesthesia, the physician arranged for the worker to undergo a further CT scan.
On September 30, 2004, primary adjudication referred the case to the WCB's healthcare branch for an opinion concerning the worker's current condition and his work injury. On October 4, 2004, the WCB medical advisor concluded that the worker's ongoing symptoms were related to his pre-existing condition. The medical advisor noted that any aggravation of the worker's pre-existing condition would have usually resolved by this time. He felt that a repeat CT scan was not warranted given the lack of neurological deficit as noted by the attending physician in his report of September 22, 2004.
On October 6, 2004, a WCB case manager advised the worker that wage loss benefits would be paid to October 13, 2004 inclusive and final. It was the case manager's opinion that the worker's current and ongoing symptoms were due to his pre-existing condition and not to his work injury.
On October 22, 2004, a second CT scan of the lumbar spine was carried out. The radiological report indicated that there were no signs of focal disc herniation, spinal stenosis or nerve root compression. No bony abnormality was identified.
In a further decision dated November 2, 2004, the WCB case manager advised the worker that she reviewed the new CT scan findings and compared them with the findings of April 13, 2004. As there were no changes in the results, she was unable to rescind her decision of October 6, 2004.
On December 14, 2004, Review Office determined that no wage loss benefits were payable to the worker beyond October 13, 2004. Review Office recognized that the worker had a pre-existing condition in his lumbar spine that existed before this particular accident. Review Office believed that the accident was a form of a sprain or strain of the lumbar spine and that the worker achieved recovery from this by October 13, 2004. Review Office noted that The Workers Compensation Act (the Act) and board policy did not allow for payment of benefits where the loss of earning capacity was caused solely or primarily by a pre-existing condition.
Subsequent to Review Office's decision, up-dated medical information was submitted by the treating physician dated December 8, 2004 and January 12, 2005.
On April 11, 2005, the worker appealed Review Office's decision and an oral hearing took place on July 14, 2005.
Following the hearing and after discussing the case, the Appeal Panel decided to obtain additional information from two of the worker's treating physicians prior to discussing the case further.
On October 13, 2005, all interested parties were provided with copies of the following information that had been received by the Panel and were asked to provide comment:
- Letter dated October 5, 2005 by an orthopaedic specialist along with x-ray, bone scan and CT myelogram results;
- Letter dated August 12, 2005 by the family physician.
Reasons
As the background notes indicate, the worker slipped on an ice patch and landed on his back. As a consequence of this incident, he developed lower back pain with the possibility of some radicular irritation, particularly around the L5 nerve root. A CT scan conducted on April 13, 2004 revealed bilateral facet osteoarthritis at the L3 to S1 levels. However, all radiological diagnostic procedures including a CT myelogram ordered by the treating orthopaedic surgeon on June 30, 2005 disclosed no evidence of nerve root compression or significant canal stenosis.We are satisfied based on the weight of evidence that in all likelihood the worker sustained an aggravation to his pre-existing bilateral facet osteoarthritis at the time of his compensable injury. According to the treating physician, the continuity of the worker's symptoms persisted until November 5, 2004 when the worker received an epidural steroid injection. The treating physician reported that "Following the injection he appeared to have significant improvement in his complaints of lower back pain and discomfort, and from a subjective point of view the injection appeared to help".
We find the preponderance of evidence confirms that the aggravation of the worker's pre-existing bilateral facet osteoarthritis had, on a balance of probabilities, resolved by the time of the epidural injection. Therefore, we further find that the worker is entitled to payment of wage loss benefits to November 6, 2004 inclusive and final. Accordingly, the worker's appeal is hereby allowed.
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 18th day of November, 2005