Decision #17/06 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on December 7, 2005 at the request of a worker advisor, acting on the worker's behalf. The Panel discussed this appeal on December 7, 2005.Issue
Whether or not the worker's left hip and low back condition is related to the compensable injury of April 5, 2000.Decision
That the worker's left hip and low back condition is not related to the compensable injury of April 5, 2000.Decision: Unanimous
Background
The worker filed a claim with the Workers Compensation Board (WCB) for a left knee injury that occurred at work on April 5, 2000. The circumstances and area of injury were described by the worker in the WCB Worker's Report dated April 28, 2000 as follows:"As I was spraying foam on machine walked into open part of drain and right leg dropped in. Left leg bent back as I landed awkwardly on left knee which hit grating adjacent to open section of drain. A few days later while working knee started clicking as I walked and then made an audible popping noise several times accompanied by a jolt or pain each time causing me to limp."The worker was first treated for this injury on April 14, 2000. The doctor's first report notes subjective complaints of some discomfort in the left knee and clicking when walking. The objective findings note that the left knee was not swollen or tender and there was full range of motion. The worker was diagnosed as having a left knee strain.
According to the doctor's progress report, when next examined on April 21, 2000, the worker complained of continued discomfort in his left knee when walking and the doctor noted tenderness under the patella in the middle aspect. The worker was referred to an orthopaedic surgeon.
The orthopaedic surgeon examined the worker on April 27, 2000 and noted tenderness at the anteromedial knee joint line and a palpable click on that side of the knee. The orthopaedic surgeon indicated that the worker may have a tear of the meniscus and referred him to another orthopaedic surgeon for arthroscopic investigation of the left knee.
The second orthopaedic surgeon examined the worker on May 25, 2000 and noted a clicking sound, which may be associated with a meniscal tear and recommended an MRI or arthroscopy to evaluate the knee.
While waiting for the MRI appointment, the worker sought treatment from his physician on May 30, 2000 for his left knee pain. The physician recommended that the worker return to light duties involving mostly sitting with no lifting or prolonged standing or climbing.
On June 8, 2000 the worker returned to work performing modified duties that involved sitting with his knee bent. The worker complained of increased pain in his left knee and that his knee was buckling when he tried to walk. He sought treatment from his physician later that day who recommended that he sit with his leg extended. The worker advised his employer and the job duties were modified to allow the worker to sit with his left leg extended.
The worker continued in modified duties from June 9 to June 12, 2000, when he sought treatment at a walk-in clinic for pain in his hip and low back and clicking in his left hip. An x-ray of his left hip taken on June 13, 2000 revealed no abnormalities.
On June 13, 2000, the worker advised his employer that he would not be returning to work because of his hip problem. The worker was next examined by his doctor on June 20, 2000. The doctor's progress report indicates that the worker complained of problems with his left knee locking and pain in his left hip from sitting at work.
According to a memorandum on file dated June 26, 2000, the worker advised the WCB case manager that he had been off work since June 13 because of his left hip problem, which he believed was related to the April 5, 2000 accident. The worker advised the manager that at the time of the accident he felt a pull and burning sensation in his low back. An earlier memorandum on file indicates that on May 16, 2000 the worker had also advised a WCB adjudicator that he felt a slight pull in his lower back on the left side at the time of the accident.
According to the June 26, 2000 memorandum, the worker did not have any problem with his knee until he was at work on April 8 when he felt popping and pain in his left knee. He did not have any symptoms in his hips or low back following the accident until June 9, 2000. The worker also explained that while he was performing his modified duties from June 9 to June 11, his low back and hip became increasingly sore and while at home on June 11 he felt "clunking" in his left hip.
On June 22, 2000 a WCB orthopaedic consultant reviewed the file information focusing on whether there was a likelihood of a meniscus tear to the worker's left knee as a result of the April 5, 2000 accident. The consultant was of the view that the findings of no swelling, contusions or decrease in the range of motion were inconsistent with a meniscus tear and there was no indication to authorize an MRI or arthroscopy of the left knee.
In a decision dated June 27, 2000, initial adjudication denied responsibility for the worker's left knee and hip injuries. Relying on the WCB consultant's opinion that the medical findings were not consistent with a meniscal tear, the adjudicator was unable to relate the left knee problems to the April 5 accident. The adjudicator was also not satisfied that the worker's hip and low back problems were related to the April 5 accident in light of the two month delay in the onset of any symptoms in that area.
By letter dated October 16, 2003 the worker's advisor requested that the WCB reconsider the adjudicator's decision of June 27, 2000 in light of new medical evidence, which included a report from the worker's orthopaedic surgeon dated July 15, 2003 and a report from the worker's chiropractor dated December 5, 2002.
The orthopaedic surgeon's report indicated the following:
- An MRI scan confirmed the presence of a meniscal tear in the worker's left knee and on December 12, 2000 arthroscopy was performed and the tear was successfully repaired. The worker had recovered from the surgery to his knee by January 4, 2001;
- The surgeon was of the opinion that the April 5 accident was the most probable cause of the meniscal tear of the left knee. The surgeon indicated that a meniscal tear may not cause immediate symptoms at the time of injury; that a person may have full range of motion to the knee at the time of a meniscal tear; that symptoms do not have to be immediate or continuous and locking can occur on a very intermittent basis;
- When the orthopaedic surgeon began treating the worker on May 25, 2000, the worker did not complain of his hip and back;
- With respect to ongoing back and hip pain, the surgeon notes that he cannot verify any abnormality. He states that MRI scans of the back and lumbar spine as well as a whole body scan did not show any abnormalities. According to the surgeon, the worker "most probably sustained a strain to his back but nothing more severe and this would have had a limited course". With respect to the hip the surgeon stated that the worker "may have had a mild strain to the area or a contusion but nothing more severe than this."
- With respect to the worker's back strain or hip strain, the surgeon also stated that "one would usually recover from this within a couple of weeks although it may drag on for a month or two but any sort of soft tissue injury usually is self-limiting and usually recovers within a few months";
- With respect to the worker's ability to return to regular duties, the surgeon states:
"In regards to returning back to regular duties, this gentleman does not suffer from any significant impairment. There is no proof that he has sustained any untoward injury to his hip or to his back so from a point of view of actually finding any evidence of something wrong, there is nothing to substantiate this in regards to his hip or his knee so from an impairment point of view I would suspect that this gentleman would be able to return to work. Now he is suffering from pain and any limitation he has may be secondary to pain but no specific injury at the time of this fall could have caused such a great degree of damage to prevent him from working. In regards to his knee, he should be fully recovered and able to return to work."
The WCB Review office considered the matter and rendered a decision dated March 3, 2004 in which it held that the worker's left knee condition was related to the injury of April 5, 2000. However, the Review Office also held that the worker's hip and back condition were not related to the April 5 accident given the two month delay from the time of the accident and the onset of symptoms.
By letter dated December 17, 2004, the worker's advisor requested that the Review Office reconsider its decision denying compensation for the worker's back problems based on a new report from an occupational health physician dated October 27, 2004 and a letter from the worker's chiropractor dated June 22, 2004.
The occupational health physician assessed the worker on October 27, 2004 and indicated in his report that the force and mechanics of the worker's fall on April 5 may well have injured his back, noting that he did have momentary pain in his left low back at the time of the accident. The physician expressed the opinion that it was probable that the April 5 accident was a significant factor and the delay in symptoms was due to the fact that the worker stayed off his feet until he returned to modified duties in June, at which time the awkward mechanics of loading fish fillets while seated aggravated his back.
The chiropractor was also of the opinion, expressed in his June 22, 2004 letter, that the mechanism of injury was consistent with the development of lumbar facet syndrome and the onset of symptoms is associated with the worker's return to increased activities at work.
The Review Office considered the new evidence provided. In its decision of March 8, 2005 the Review Office upheld its decision that the worker's hip and low back symptoms were not related to the accident of April 5, 2000 given the delay in onset of symptoms until June 2000.
On May 20, 2005, the worker advisor appealed Review Office's decision to the Appeal Commission.
Evidence at Appeal Hearing
At the appeal hearing, the worker testified that while spraying machinery with cleaning foam, he stepped with his right foot into a hole, 2 ½ feet deep, twisted his body to the left and hit his left knee on a grate at floor level. At the time of the accident he felt a pull and a burn in his low back that disappeared immediately. He did not have any immediate pain in his knee and he continued working for three more shifts doing the same job. His left knee began clicking on April 8, the third day following the accident. He reported the accident on April 8, the same day that he was laid off due to a shortage of work. The worker testified that he did not experience any back problems during those three days or during the period while he was laid off from April 8 until he returned to modified duties in June 2000.
The worker testified that when he first returned to modified duties on June 8, 2000 his job required that he sit with his knees bent on a low stool, reaching forward and back to catch and sort fish. He testified that whenever he got up his knee jolted, buckled and was painful. The worker testified that he did not experience any back problems doing his work on June 8, 2000. He completed his shift and went to see his doctor who suggested that he try sitting with his left leg extended. The worker testified that he spoke to his supervisor the following morning and he was moved to a different sorting machine where he sat on a higher bench with his left leg extended. He was doing similar back and forth movements reaching to a conveyor belt on his right side, taking off fish and moving them into buckets.
The worker testified that on June 9, while doing the job with his leg extended, his back started aching and continued to worsen until the end of the shift. He continued the same job for four days and each day his back got increasingly sore. He indicated that the area that hurt was in the same spot where he had initially felt the pull and burning sensation in his back at the time of the April 5 accident.
The worker testified that he did not advise his employer that he was experiencing any back problems during the four days that he was doing modified duties with his leg extended. When asked why he didn't report the back problem when he had reported his knee problem, the worker explained that he initially thought the back problem would be temporary and that he didn't think there were any other jobs available that would not bother his back.
The worker testified that on June 12, his back pain was so bad he couldn't take it any more and went to see a doctor who examined him and ordered an x-ray for the following day. The x-ray showed no abnormalities.
The worker testified that he could not return to work because of the back pain and during the period from June 13 until the date of his knee surgery on December 12, 2000, he remained off work. The worker indicated that during this period he remained largely sedentary and that his back would start aching if he sat for more than 15 or 20 minutes at a time.
The worker testified that he saw his orthopaedic surgeon several times beginning in May 2000 for his left knee. The worker couldn't recall when he had first raised his back problem with the orthopaedic surgeon, but on December 6, 2000 the surgeon referred him to physiotherapy for his back. The worker testified that he received treatment for his back from December 22, 2000 to February 12, 2001, but the treatments made his back worse. The worker testified that he was last seen by the orthopeadic surgeon in August 2001 and at that time he had still not returned to work due to his back problem.
On August 14, 2001 the worker sought treatment from a chiropractor and his back gradually recovered. On March 14, 2002 the chiropractor advised him that he was capable of returning to work. The worker testified that as of the date of the hearing he had not returned to work with his previous employer and he has not been able to find another job.
Reasons
The WCB determined that the worker's left knee injury and subsequent surgery was related to his accident at work on April 5, 2000 and benefits were provided. The issue in this appeal is whether the worker's lower back and left hip problems, which first manifested symptoms in June 2000, are also related to the worker's April 5 accident.The worker advisor submits that the worker sustained a strain to his low back and hip on April 5, 2000 as evidenced by the pull and burning sensation that the worker reported in his low back as early as May 16, 2000, and that the modified duties in June 2000 aggravated this injury. The worker advisor explains the lack of back symptoms from the time of the accident until June 2000 as likely due to the worker having rested during this period.
After considering all of the information on file and the evidence presented at hearing, the panel is unable to agree with the worker's position. The panel has reached the conclusion that, on the balance of probabilities, the worker's low back and hip problems are not related to the accident that occurred on April 5, 2000.
The Panel notes that the worker testified that the pull and burning sensation he felt at the time of the accident disappeared immediately and he experienced no back or hip symptoms at all during the next three days when he continued doing his job or at any time during the nine week period following the accident. The worker was seen by physicians on a regular basis during this nine week period for his knee problem and there is no indication that back or hip problems were ever raised.
While the worker advisor refers to the orthopaedic surgeon's opinion that there may have been a mild strain to the back or hip area at the time of injury, the panel notes that this surgeon did not treat the worker until May 25, 2000 and his opinion was based on an assumption that the worker had complained of back problems at the time of the accident or had suffered a contusion in that area. There is no evidence of any contusions in the back or hip area and the worker testified that he did not have any symptoms in his back or hip until June 9, 2000.
The panel also notes that the occupational health physician, who was of the view that the April 5, 2000 accident was a significant factor in the worker's back problems, first assessed the worker more than four years following the accident.
The occupational health physician states in his report that the worker felt "tinges of pain in his left hip and low back, but they did not trouble him much compared to the acute knee until a few months later". This description of symptoms is not consistent with the worker's evidence, which did not indicate that the worker was distracted from less intense back pain by knee pain. Rather, the worker's evidence was that he did not feel any knee pain at the time of the accident or for three days following the accident; that he did not have any back symptoms at all during those three days even though he continued working and that he experienced no problems whatsoever in his back for the next nine weeks.
The panel also finds that the evidence does not support the worker's submission that the delay of onset of back symptoms was due to the worker's restriction of movements from the time of the accident until his back was aggravated when he returned to modified duties. The worker testified that he continued to work full time for three days following the accident and yet experienced no symptoms in his back. The worker further testified that he did not experience back symptoms on June 8, 2000, despite having worked a full shift doing duties similar to those he did during the period of June 9 to June 12. Had the accident caused a hip or back strain that had not resolved, one would have expected the continued activity in April and again on June 9 to give rise to symptoms.
The Panel also questions the worker's failure to report his back problems to his employer in June 2000, even though he did not hesitate to report his knee problems at that time.
Based on the above evidence, we find on a balance of probabilities that the worker's low back and hip condition is not related to the accident that occurred on April 5, 2000.
Panel Members
M. Thow, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
M. Thow - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 31st day of January, 2006