Decision #32/06 - Type: Workers Compensation

Preamble

An appeal panel hearing was held on November 10, 2005 at the request of a worker advisor, acting on behalf of the worker. The Panel discussed the appeal following the hearing and requested further medical information. The Panel discussed the appeal again on February 7, 2006.

Issue

Whether or not the worker has recovered from the September 1, 2004 compensable injury; and

Whether or not the worker is entitled to payment of wage loss benefits beyond February 25, 2005.

Decision

That the worker has recovered from the September 1, 2004 compensable injury; and

That the worker is not entitled to the payment of wage loss benefits beyond February 25, 2005.

Decision: Unanimous

Background

The worker suffered a lower back injury that occurred during the course of his employment on September 1, 2004. The worker's accident report described the accident as follows:
"I was helping coworker pickup logs and pile the logs. As I was doing this I felt hot pain at one point as I lifting (sic) and was throwing the log on the pile. The log was approximately 175 pounds and I am 160 pounds."
According to the worker's accident report, the worker decided to seek medical treatment for his progressively worsening back on September 27, 2004 by contacting his family physician, who was unavailable. An appointment was scheduled with another physician for October 8, 2004.

An x-ray of the worker's lumbosacral spine taken on October 8, 2004 revealed disc space narrowing and osteophyte formation at L4-L5 and L5-S1 as well as small osteophytes at the L3-L4 level. The x-ray report indicated that these findings were consistent with degenerative disc disease.

In the Doctor's First Report dated October 8, 2004, the worker was diagnosed as suffering from a lower back strain. The physician noted that the worker had pre-existing osteoarthritis in his lumbar spine that may affect recovery. Heat, medication and physiotherapy treatments were prescribed.

On October 26, 2004, the Workers Compensation Board ("WCB") accepted the claim based on the diagnosis of a lower back strain.

The worker underwent physiotherapy treatments two to three times per week for his lower back condition. After 14 treatments the physiotherapist reported that the worker complained of constant lower back pain and that he was unable to do any activities without his back hurting. The therapist requested authorization for additional treatment.

On December 13, 2004 the WCB case manager contacted the therapist and noted "spasms gone, mainly subjective complaints doesn't do exercises". The WCB case manager denied the application for additional therapy on the basis that there was no evidence that further treatment was warranted.

The WCB case manager asked a WCB medical advisor to review the file and provide an opinion regarding the relationship between the injury and the worker's current condition.

On January 6, 2005, the WCB medical advisor outlined his opinion that the diagnosis was a lumbar strain with possible disc herniation and that there was an ongoing cause and effect relationship between the compensable injury and the current diagnosis. The medical advisor recommended a CT scan to determine if a disc herniation was involved, following which he would reassess the matter. The medical advisor was of the opinion that the worker's pre-existing condition contributed to the length of his recovery but he could not yet determine if the aggravation to the worker's pre-existing condition had resolved.

On February 10, 2005, the worker underwent a CT scan of his lumbar spine. The report indicated that at the L4-L5 level there was evidence of disc space narrowing with minimal bilateral facet arthropathy and small posterior osteophytes. There was minimal diffuse disc bulging without evidence of focal herniation. At the L5-S1 level there were degenerative changes with disc space narrowing and a vacuum phenomenon. Minimal facet arthropathy was seen. There was no evidence of disc herniation, spinal stenosis or nerve root compression at the L3-L4, L4-L5 or L5-S1 levels.

The WCB medical advisor reviewed the file again on February 17, 2005. The medical advisor noted that there had been a gradual onset of lower back pain through September 2004 and that degenerative disc and facet disease were seen on the CT scan. The WCB medical advisor was of the opinion that the compensable injury was an aggravation of the worker's pre-existing condition. However, the medical advisor was of the view that the worker's low back strain had now resolved and the ongoing pain related to his pre-existing condition.

The WCB determined that as of February 25, 2005, the worker had recovered from his low back strain and any aggravation that injury may have caused to his pre-existing degenerative condition. The case manager noted that the worker reported that his back symptoms had not improved with treatment, which is consistent with degenerative disc disease and that at nearly six months since the accident, the WCB considers his current symptoms to be solely related to the pre-existing degenerative disc disease.

On March 16, 2005, the worker appealed the WCB decision denying his claim and argued that as he had never had any back problems prior to the accident, his condition was not solely related to his pre-existing condition.

On April 29, 2005, Review Office held that the worker had recovered from his compensable injury and was not entitled to wage loss benefits beyond February 25, 2005.

The Review Office stated as follows:
"It is noted that although the worker sustained injury September 1, 2004, he did not seek medical attention until October 8, 2004, and was diagnosed with a lower back strain. Both x-ray and CT scan findings did not show any significant diagnosis in relation to the compensable injury to explain the worker's ongoing pain. The Review Office placed significant weight on the opinion expressed by the WCB medical advisor that the worker had recovered from the compensable injury and any aggravation to the pre-existing condition that may have been caused by the compensable injury."
In July 2005, a worker advisor, acting on the worker's behalf, appealed the Review Office's decision and requested an oral hearing.

A report dated October 18, 2005 was provided to the WCB by an orthopaedic specialist who assessed the worker on October 11, 2005. After noting that the October 2004 x-ray showed narrowing of the L4-5 and L5-S1 disc space, the orthopaedic specialist suggests that it is not clear whether or not the injury caused the degenerative changes stating:
"This gentleman therefore has had a back injury. He has demonstrated narrowing of L4-5 and L5-S1, with degenerative changes, but no specific nerve root impingement. Whether or not the degenerative changes are the result of the injury is hard to tell, however he does have narrowing of two discs on October 4, 2004, where his accident was September 1, 2004, approximately one month prior to this."
On November 10, 2005, an oral hearing was held at the Appeal Commission to consider the worker's appeal.

Following the hearing, the panel met and decided to request additional information from the orthopaedic specialist to clarify the opinion he expressed in the October 18, 2005 report.

The orthopaedic specialist provided two reports, one dated November 30, 2005 and another dated January 17, 2006 responding to the panel's request for information. Both reports were forwarded to the interested parties for comment. The worker advisor provided the panel with a written response. On February 7, 2006, the Panel met to discuss the appeal.

Reasons

This 60 year old worker suffered a lower back strain at work on September 1, 2004 and 14 months later he continues to suffer from back pain that has not significantly improved. The medical evidence indicates that the worker suffers from degenerative disc disease that existed prior to the injury.

The Workers Compensation Act only provides compensation for "personal injury by accident arising out of and in the course of employment". Compensation is not provided for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not an "accident arising out of and in the course of employment."

The issue before this panel is whether or not the worker's current back condition is attributable to the compensable injury or to his pre-existing condition or to the relationship between them. In addressing this issue, the panel considered WCB Policy 44.10.20.10, the relevant sections of which read 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.

In order for this appeal to be successful, the panel must be satisfied on a balance of probabilities, that the worker's lower back strain alone or in concert with his pre-existing degenerative condition, is causing his ongoing disability and wage loss. The panel was not able to make this finding.

At hearing, the worker testified that he was responsible for operating a brush cutting machine to mulch trees that were being cleared in a remote area. While helping a co-worker move logs he felt his back become hot and lock after moving the second or third log. He stopped moving logs that day and rested for a few hours before continuing to operate the equipment to mulch the felled trees. He continued to work until September 18, 2004, but restricted his activities to repairing equipment. He described his symptoms during this time as a hot, achy and sore back.

The worker testified that prior to the accident he had experienced some back symptoms while shoveling or lifting but nothing serious. Since the accident he has not been able to work. He testified that he is capable of doing activities such as lawn cutting and housework for no more than 1 to 3 hours at a time. He described his current symptoms as a hot and sore back with numbness that comes and goes down his leg to the back of his calves and in his heels. He testified that his symptoms have not improved since the accident.

Prior to making a decision, the panel sought further medical evidence from the orthopaedic specialist who had assessed the worker on October 11, 2005. The panel asked the specialist to indicate his diagnosis of the worker's condition; to provide an opinion as to whether the worker's degenerative disc disease was caused by the September 1, 2004 accident or was pre-existing; whether the workplace accident aggravated the condition, and if so, whether the aggravation had resolved to the point where the workplace accident was no longer contributing to a material degree to the worker's lower back problem.

In response to the panel's questions, the orthopaedic specialist provided a report dated November 30, 2005 in which he confirms that it is unlikely that the worker's degenerative changes occurred after the accident and it was his opinion that the worker had degenerative disc disease and experienced a temporary aggravation of symptoms due to the accident. Based on the x-ray findings, the orthopaedic specialist expressed the view that the worker must have had aches and pains in his back prior to the accident.

The orthopaedic specialist noted that he did not examine the worker until October 11, 2005, but he was of the view that the worker likely recovered from the aggravation by September 2005. He suggested that recovery in six months was a bit short and one could assume the worker recovered in one year following the accident.

Finally, the specialist indicated that he would be seeing the worker again in December 2005, at which time he would repeat the x-rays and compare them to the October 2004 x-rays to see if the degenerative changes were progressing as this might indicate that the changes could be the result of the accident.

In the follow up report dated January 17, 2006, the orthopaedic specialist states that the December 2005 x-rays show degenerative changes. The specialist concludes as follows:
"My revision of the statements is minimal. I believe he has lumbar disc degeneration, which undoubtedly predated the time of the accident. In my previous letter I stated that I thought one year's consideration after the accident to assume that he is back to the pre-accident state was reasonable. This would make me think that he likely could have been assumed to have achieved his pre- accident state approximately September 2005."
After carefully considering the worker's testimony and all of the medical evidence including the response of the worker advisor, the panel has concluded that the worker's ongoing condition is no longer related to the compensable back strain or to the effect of that strain on his pre-existing degenerative condition.

The panel has reached this decision for the following reasons:
  • All of the medical evidence including the x-rays, CT scan and opinions of the WCB medical advisor and the orthopaedic specialist confirm that the worker had degenerative disc disease that existed prior to the September 1, 2004 accident;

  • The worker's physician diagnosed the injury as a lumbar strain and the CT scan performed on February 10, 2005 confirmed that there was no evidence of disc herniation or other injury that may have resulted from the compensable accident;

  • The orthopaedic specialist diagnosed the worker as suffering from pre-existing degenerative changes that were aggravated by the compensable injury. As the specialist indicated that the worker would likely have recovered from the aggravation by September 2005, it must be assumed by the panel that when he first saw the worker on October 11, 2005, he was of the opinion that the worker had recovered from the compensable injury.
In light of the above reasons the panel has unanimously determined that, on a balance of probabilities, the compensable accident is no longer the cause of the worker's loss of earning capacity, but rather his condition is solely related to his pre-existing degenerative disc condition. There is also no evidence to suggest that the pre-existing condition was permanently enhanced by the injury. On the first issue we find therefore that the worker has recovered from the September 1, 2004 compensable injury.

On the second issue of whether the worker is entitled to wage loss benefits beyond February 25, 2005, the panel finds that he is not entitled.

The panel considered the specialist's opinion suggesting that the worker's recovery may not have occurred by six months post-accident, and notes that the specialist had not examined the worker or reviewed the worker's medical file at that time. The specialist did not examine the applicant until 13 months following the accident. The panel places greater weight on the WCB medical advisor's opinion in this regard.

The WCB medical advisor reviewed the file on January 6, 2005 and requested a CT scan before making a determination as to whether the worker had recovered from the injury at that time. On February 17, 2005, after the CT scan ruled out the possibility of disc herniation, the medical advisor reconsidered the mechanism of injury and gradual onset of pain and the findings of degenerative disease in concluding that the worker's aggravation had resolved and the ongoing back symptoms were related to the pre-existing degenerative condition. There has been no evidence to suggest that the worker's condition in February 2005 was any different from that reported in October 2005, when the orthopaedic specialist was of the view that the worker had recovered from the injury.

Therefore, the panel has concluded that the preponderance of evidence supports a finding that as of February 25, 2005, the compensable injury was no longer the cause of the worker's loss of earning capacity, and we deny the worker's claim for wage loss benefits beyond that date.

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 14th day of March, 2006

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