Decision #26/05 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on April 28, 2004, at the request of a union representative, acting on behalf of the worker. The Panel discussed this appeal on several occasions, the last one being December 22, 2004.

Issue

Whether or not the worker is entitled to payment of wage loss benefits beyond June 26, 2003.

Decision

That the worker is entitled to payment of wage loss benefits from June 26, 2003 to January 2, 2004 inclusive and final.

Decision: Unanimous

Background

On May 27, 2002, the worker injured her lower back region during the course of her employment as a nurse's aide. The worker was later treated for a severe sprain of her lower back which included physiotherapy, rest and medication. The claim was accepted by the Workers Compensation Board (WCB) and benefits began on June 4, 2002. Subsequent medical information revealed the following:
  • June 6, 2002 - x-rays of the lumbosacral spine revealed disc degeneration at L4-5 and L5-S1 with progression in severity since April 2, 1998.

  • September 11, 2002 - CT scan of the lumbosacral spine revealed a central and right posterior L5-S1 disc herniation.

  • October 28, 2002 - following a WCB call-in examination, a WCB medical advisor commented that the worker appeared to be suffering from an aggravation of her pre-existing degenerative disc disease. The medical advisor said it was impossible to determine whether the disc herniation was present prior to the injury but, given the mechanism, it was possible that the injury could have caused the disc herniation in an already compromised degenerative disc. He suggested that the worker continue with physiotherapy treatments. The medical advisor noted that the normal recovery time from this pathology was 3 to 6 months or longer. The worker was considered fit to commence a graduated return to work with restrictions if such duties were available.

  • March 13, 2003 - the worker advised the WCB that she went off work again because of increased back pain.

  • April 17, 2003 - a neurosurgeon reported that he had assessed the worker as an outpatient and that the clinical presentation revealed an irritation of the zygapophyseal joints and a radiculopathy. An infiltration of the zygapophyseal joints and recurrent nerves was recommended. On May 1, 2003, a WCB medical advisor stated that the proposed injections were reasonable and related to the compensable injury.

  • May 7, 2003 - "Infiltration of the zygapophyseal joints and recurrent nerve L4-5, L5-S1 bilateral" was performed.

  • May 9, 2003 - the worker advised her case manager that the injections did not work and her pain was still there.

  • May 20, 2003 - a WCB case manager advised the worker that he had discussed her case with a WCB medical advisor and determined that she was fit for modified duties at four hour shifts to start and increasing by one hour per week until full hours were achieved. It was expected that after the program was completed, the worker could return to her full work duties.

  • May 23, 2003 - the WCB case manager decided to put the graduated return to work program on hold until receipt of the neurosurgeon's follow-up report. The case manager outlined the attending physician's opinion that the worker was still suffering from the L5-S1 disc herniation as opposed to the significant degenerative changes noted in the zygapophyseal joints.

  • May 30, 2003 - the examining WCB medical advisor noted that there were no objective findings to change her opinion from October 2002 that the worker was capable of performing a graduated return to work program. The medical advisor commented that if the worker's symptoms were indeed getting worse, it would more likely be related to the pre-existing degenerative changes as the work related injury/aggravation should improve with time and treatment.

  • June 10, 2003 - the neurosurgeon reported that the worker's pain had subsided for approximately 2 ½ weeks following the infiltration of the zygapophyseal joints on May 7, 2003. He noted that the pain had now recurred with the same characteristics and distribution. He suggested that the worker start an intense physiotherapy program and lose weight to reduce the stress on the lumbar spine.

  • June 19, 2003 - the attending physician reported that the worker's pain has remained the same and that it was in the same distribution and was worse during physical activity of any kind.
On June 19, 2003, primary adjudication advised the worker that her wage loss benefits would be paid to June 26, 2003. Based on subsection 39(2) of The Workers Compensation Act (the Act) it was the WCB's opinion that her current difficulties were due to the non-compensable pre-existing condition in her lower back and that she had recovered from the effects of her compensable accident.

On September 22, 2003, a union representative, acting on behalf of the worker, appealed primary adjudication's decision of June 19, 2003. Prior to considering the appeal, Review Office sought the medical advice of a WCB orthopaedic consultant on October 28, 2003.

In a decision dated October 30, 2003, Review Office agreed with primary adjudication that the worker was not entitled to the payment of wage loss benefits beyond June 26, 2003. Review Office noted the union representative's speculation that the worker's degenerative problems had suffered an irreversible change because of the accident. Review Office felt there was no medical evidence to support this conclusion.

In keeping with the WCB's policy concerning pre-existing conditions, Review Office found that the worker had recovered sufficiently from the effects of her accident to resume employment by June 26, 2003. Any suggestion that she had work restrictions would be due to several pre-existing factors and not the effects of the accident. On November 27, 2003, the union representative appealed Review Office's decision and an oral hearing was arranged.

Following the hearing and after discussion of the case, the Appeal Panel asked for up-to-date medical information from the worker's attending physician prior to discussing the case further. A report from the physician was later received dated November 30, 2004 and was forwarded to the interested parties for comment. On December 22, 2004, the Panel met to further discuss the case and to render its final decision with respect to the issue under appeal.

Reasons

At the time of her compensable injury (May 27, 2002), the worker was diagnosed as having sustained a severe sprain of the lower back. Subsequent radiological imaging revealed L4-5 and L5-S1 disc degeneration with progression in severity since April 2, 1998 and a central and right posterior L5-S1 disc herniation.

On October 28, 2002, the worker underwent a clinical examination by a WCB medical advisor. The medical advisor recorded the following comments in her examination notes:

“Based on review of Ms. [the worker’s] file and current call-in examination findings, she appears to be suffering from an aggravation of pre-existing degenerative disc disease. It is impossible to say whether the disc herniation was present prior to the injury but, given the mechanism, it is possible that the injury did cause the disc herniation in an already-compromised degenerative disc.”

Since the termination of her benefits on June 26, 2003, the worker has been seen by her treating physician on no less than 40 separate occasions prior to the end of the 2003 calendar year. The treating physician reported that “her presentation from visit to visit changed only in the intensity of the pain, the variation on limitation of her range of movements.” The worker’s usual clinical presentation included pain on the lower back with radiation to her buttocks and down her right leg. This pain sensation was worse with movements such as carrying and lifting.

The treating physician advised the worker that she could “return to work on a modified duties return to work schedule in (sic) January 2, 2004.” In addition, it should also be noted that a WCB orthopaedic consultant concluded on October 28, 2003 that the compensable injury was still playing a material role in the worker’s symptoms by June 26, 2003. He further stated: “In my opinion even though still symptomatic there should be significant recovery to proceed to G.T.W. [gradual return to work] with restrictions as advised.”

After weighing all of the evidence, we find that the worker in all probability sustained an aggravation of her pre-existing degenerative disc disease at the time of her compensable accident. We further find that the said aggravation had, on a balance of probabilities, resolved by January 2004 to the extent that she would no longer be in a wage loss position. The worker is therefore entitled to payment of wage loss benefits beyond June 26, 2003 up to January 2, 2004 when she was cleared to perform modified duties. Accordingly, the worker’s appeal is hereby allowed.

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 3rd day of February, 2005

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