Decision #45/05 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on January 31, 2005 at the worker's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to wage loss benefits and services beyond September 30, 2001.

Decision

That the worker is not entitled to wage loss benefits and services beyond September 30, 2001.

Decision: Unanimous

Background

On May 1, 2001, while working as a Health Care Aide, the worker reported experiencing a sharp pain in her lower back while lifting a resident's leg onto a bed. She was first examined by her chiropractor on May 3, 2001 for complaints of lower back pain and difficulty bending and sitting. The chiropractor diagnosed the injury as an acute lumbar strain and recommended 8 weeks of chiropractic treatment.

An x-ray of the worker's lumbar spine (lower back area) was taken on May 10, 2001, which indicated mild osteopenia and mild to moderate degenerative disc disease at the L3/4 level and possible atherosclerosis. The chiropractor also provided the Workers Compensation Board ("WCB") with an earlier x-ray report taken on March 27, 2001 that noted degenerative disc disease in the thoracic spine (chest area) at the T7/8, T8/9 and T3/4 levels. The reports read as follows:

May 10, 2001 Report:

"Lumbar Spine: Mild lumbar scoliosis convex left. Anterior lumbar gravity line. Mild osteopenia. Bowel gas overlying left superior pubic ramus. DDD L3/4 mild to moderate. Possible atherosclerosis. Pelvis: Mild osteopenia. Mild reduction in left superior coxal joint space."

March 27, 2001 Report:

"Angle of the mid and lower thoracic spine is reduced. Mild thoraco-lumbar and upper lumbar scoliosis convex left. Mild upper thoracic scoliosis convex right. Apparent DDD T7/8 and T8/9 early, T3/4 mild. Costochondral calcification."

On June 20, 2001, according to a memo on file, the worker advised the WCB case manager that she continued to have difficulties from an earlier injury with her neck, shoulder and upper back; that she is currently unable to work due to her low back, shoulder, neck and upper back problems; and that all of these problems were being treated by her chiropractor.

In a report to the WCB dated June 20, 2001, the chiropractor advised that the worker's recovery was slower than initially anticipated and requested that the WCB conduct a call in assessment. The chiropractor was of the opinion that the worker would be capable of returning to modified light duties by June 25, 2001 with restrictions for her cervical and lumbar conditions.

The WCB case manager contacted the treating chiropractor to determine what restrictions were recommended. According to a memo on file dated June 27, 2001, the chiropractor advised that the worker's lower back was improving but she was still having problems related to a previous cervical injury. The chiropractor requested that the WCB consultant assess the worker before restrictions were given.

On August 14, 2001, the worker was examined by a WCB chiropractic advisor. The WCB advisor was of the opinion that there was some residual effect from the compensable accident of May 1, 2001, noting some muscle hypertonicity and tenderness in the paravertebral musculature in the lumbar spine and the possibility of mild right sacroiliac joint dysfunction. The WCB advisor was of the opinion that the worker was fit for a graduated return to work program. It was noted that the worker had been physically inactive and the WCB advisor was concerned about deconditioning.

Arrangements were made for the worker to commence a five week graduated return to work program starting on August 22, 2001. It was anticipated that the worker would return to her regular duties by October 1, 2001.

The worker participated in the return to work plan until September 26, 2001, when she contacted her employer and advised that she was in pain and could not return to light duties. The worker advised the WCB case manager that she had pain in her lower back and had difficulty walking and could not return to work. The WCB case manager advised that it was necessary to obtain updated information from the chiropractor, which would be reviewed by the WCB medical advisor.

A progress report was provided to the WCB by the worker's chiropractor dated September 30, 2001 in which the chiropractor indicated that the worker appears to have recovered.

According to the file information, the WCB chiropractic advisor contacted the treating chiropractor on October 10, 2001 to discuss the worker's condition. The chiropractor indicated that the worker's back was about the same as it was in August 2001 when she was examined by the WCB advisor. The WCB advisor was of the opinion that the worker should now be fit for regular duties and had recovered from the effects of her injury.

In a letter dated October 10, 2001 Rehabilitation and Compensation Services advised the worker that it was determined that she had recovered from the effects of her workplace injury and wage loss benefits and chiropractic treatment costs would not be paid beyond September 30, 2001.

The worker did not appeal the decision of Rehabilitation and Compensation Services until April 16, 2003. In her letter requesting a reconsideration of that decision, the worker advised that it was the opinion of her physicians that her present disability was directly related to her initial work related injury.

The worker's appeal was referred to the Review Office. The Review Office requested reports from all of the physicians that had treated the worker for her back problem since September 2001. The following reports were received:
  • A report dated May 14, 2003 from an orthopaedic surgeon who assessed the worker on April 9, 2003, together with the results of a bone scan performed on April 23, 2003. The orthopaedic surgeon indicated a diagnosis of degenerative arthritis in the worker's right shoulder and cervical spine; early degenerative arthritis in her lumbar spine with possible disc degeneration at the L3/4 level;

  • A report dated June 9, 2003 from the worker's chiropractor who treated her from July 2001 until December 2001. The chiropractor indicated he treated the worker for full spine complaints including cervicothoracic pain and lumbosacral pain and that it was necessary to treat residual complaints in the cervical thoracic area associated with multiple WCB past claims;

  • A report dated June 17, 2003 from the worker's family physician who treated her on 3 occasions in 2002 and referred her to a physiatrist. The physician indicated that the worker continues to suffer with tenderness between her shoulder blades, neck and lower back; and

  • Reports from a physiatrist who treated the worker with a course of prolotherapy injections from September 2002 to June 2003. The physiatrist treated the worker for low back pain that was described as ligamentous in origin.
In a decision dated September 5, 2003, the Review Office determined that the worker was not entitled to wage loss benefits or services beyond September 30, 2001. The Review Office noted that the chiropractor stated that the worker was unable to work as a health care aide due to chronic symptoms in her cervical, thoracic and lumbosacral spine and that the orthopaedic surgeon was of the view that her ongoing symptoms were related to underlying degenerative changes in her cervical and lumbar spine.

It was the opinion of the Review Office that the worker's ongoing low back complaints could not reasonably be associated with the muscular strain she sustained on May 1, 2001 and denied the appeal.

The worker filed an appeal of the Review Office decision in October 2003 and a hearing was scheduled for December 9, 2003. At the worker's request the hearing was cancelled to provide her with an opportunity to obtain additional medical information.

On April 14, 2004, the worker's union representative provided the WCB with a copy of a physiotherapy report dated January 13, 2004 that had been obtained in connection with the worker's long term disability benefits claim. In a decision dated April 29, 2004, the WCB advised the worker that this new information did not alter their decision to deny her claim for wage loss benefits beyond September 30, 2001.

On or about October 13, 2004, the worker appealed this decision to the Appeal Commission. An additional medical report from the worker's physician dated September 21, 2004 was provided to the Appeal Commission.

Appeal Commission Hearing

At the hearing of this appeal, held on January 31, 2005, the worker and the employer's representative were present.

The worker described the injury that occurred on May 1, 2001, which she felt was the cause of her ongoing problems and inability to return to work. She explained that she was assisting a patient who could stand and use a walker, to lift her leg onto the bed. When the worker bent down, she felt a rip across her lower back that caused pain on both sides of her back. She described her ongoing symptoms as pain in her lower back, severe back spasms, and pain down her right leg, in her hips and groin. She is unable to walk more than two or three blocks and she is being treated for a sleep disorder.

The worker indicated that she was relying on her physician's report dated September 21, 2004 and the physiotherapy report dated January 13, 2004 to support the conclusion that her ongoing disability was related to the May 1, 2001 injury. The worker also provided an undated letter from a second chiropractor who had treated her for a brief period in June 2003.

The worker explained that following the decision of the WCB denying further payments after September 30, 2001, she did not contact the WCB to challenge that decision until April 16, 2003. During this period the worker was receiving and continues to receive disability coverage under her workplace insurance plan.

The employer's position was that the worker's wide range of symptoms over her full spine and other areas indicate that they are not related to the lower back strain she suffered in May 1, 2001. The employer's representative argued that the medical evidence indicated that the worker's difficulties were related to ongoing degenerative disc disease and other degenerative changes, and that the appropriate insurer for these problems was the worker's long term disability plan rather than the WCB.

Reasons

The issue in this appeal is whether the claimant’s ongoing disablement following September 30, 2001 is, on the balance of probabilities, related to her injury at work or to a pre-existing condition.

Subsection 4(1) of The Workers Compensation Act (the Act) provides for compensation to be paid to a worker for “personal injury by accident arising out of and in the course of the employment”. Pursuant to this section, the panel must be satisfied that there is a causal connection or relationship between the employment and the injury. The WCB is not responsible for providing benefits for disablement resulting solely from the effects of a worker’s pre-existing condition, as a pre-existing condition is not a “personal injury by accident arising out of and in the course of the employment”.

In applying Subsection 4(1) of the Act, the Panel is also bound by the policies approved by the WCB Board of Directors1. WCB Policy 44.10.20.10 deals with pre-existing conditions. Paragraphs 1.(a) and (b) of this policy provide as follows:

1. WAGE LOSS ELIGIBLITY

(a) Where a worker’s loss of earning capacity is caused in part by a compensable accident and in part by a non compensable pre-existing condition, or the relationship between them, the Worker’s Compensation Board will accept responsibility for the full injurious result of the accident.

(b) Where a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity; and

2) the pre-existing condition has not been enhanced as a result of an accident arising out of and in the course of the employment; and

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

The evidence indicates that the worker suffered a compensable injury on May 1, 2001, when she bent down to lift a patient’s leg and felt pain in her lower back. The injury was diagnosed as an acute lumbar strain with anticipated recovery following 8 weeks of chiropractic treatments. Almost 4 years later, the worker continues to suffer ongoing back problems.

The Panel has reached the conclusion, after considering all of the information on file and evidence presented at hearing that, on the balance of probabilities, the worker’s disablement is not related to the compensable accident, but rather, to the pre-existing degenerative changes in her spine. The panel has reached this determination for the following reasons:

  • The medical evidence indicates that the worker was suffering from a degenerative condition in her spine prior to the injury on May 1, 2001. X-rays taken in March and May 2001 indicate degenerative disc disease in the lumbar and thoracic spine. In the report of the orthopaedic surgeon reference is made to chiropractic x-rays taken in 1998 showing degenerative disc disease in the worker’s cervical spine;

  • The chiropractor’s report of June 9, 2003 indicates that he was treating the worker in 2001 for complaints not restricted to her lower back pain, but for “full spine complaints”. When the worker first sought treatment from a family physician in February 2002, the physician’s report indicates that she was suffering from tenderness between her shoulder blades, neck as well as her lower back. The panel notes that the file contains the worker’s written statement dated March 28, 2001 indicating that she was suffering from pain in her shoulder, neck and arm that prevented her from doing her job and when she spoke to the WCB case manager in June 2001 she attributed her inability to work to continuing problems in her shoulder, neck and upper back as well as her lower back. This suggests that the worker’s problems were more extensive and related to causes other than those associated with the lower back injury on May 1, 2001;

  • It was the opinion of both the WCB chiropractic advisor who reviewed the file on July 15, 2003 and the orthopaedic surgeon who assessed the worker on April 9, 2003 that she has significant cervical and lumbar disc disease. These findings correspond to the findings reported in the bone scan reports on file taken on April 25, 2003 and March 5, 2004;

  • The panel does not agree with the worker’s position that the physician’s report of September 21, 2004 supports a relationship between the worker’s problems and a work related injury. The physician’s report confirms that the worker has severe back pain that has continued to progress with no improvement, that she cannot sleep and that she is completely disabled from working due to pain. The physician does not express an opinion as to the cause of this disability;

  • The panel is also of the view that the physiotherapist’s report of January 13, 2004 does not support a relationship between the worker’s problems and the compensable injury. The report refers to the worker’s primary problems as encompassing pain in her middle and low back, her whole abdominal region, groin, right leg and foot, reduced range of motion in her cervical and thoracolumbar spine, hip and shoulder, reduced strength in her hip, shoulder, thigh, trunk and abdominal muscles, as well as right hip/sacroiliac dysfunction and tightness in her neck, shoulder, back, hip and knee. The undated report from the second chiropractor who treated the worker in June 2003 also indicates problems associated with all areas of the worker’s spine. These wide-ranging symptoms suggest that the worker’s problems are not related to the description of the injury that occurred on May 1, 2001;

According to the WCB chiropractic advisor who examined the worker on August 14, 2001, the worker had some residual effects from the May 1, 2001 injury. In his subsequent review of the worker’s file following discussions with the treating chiropractor, the WCB advisor was of the opinion that as of October 1, 2001, the worker should have recovered from the effects of that injury.

The panel has concluded that, on the balance of probabilities, the evidence indicates that, following September 30, 2001, the workplace injury was no longer contributing to a material degree to the worker’s loss of earning capacity. The medical information suggests that, subsequent to that time, the worker’s problems were related to a pre-existing degenerative condition and not to an acute back strain.

Accordingly, the panel finds that the worker is not entitled to wage loss benefits and services beyond September 30, 2001 and denies the appeal.

Footnotes


1 See Subsection 60.8(6) of the Act.

Panel Members

M. Thow, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

M. Thow - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 22nd day of March, 2005

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