Decision #65/06 - Type: Workers Compensation
Preamble
An appeal panel hearing was held on March 30, 2006, at the request of a worker advisor, acting on the worker's behalf. The worker appeared and provided evidence to the panel. He was represented by a worker advisor. The accident employer also appeared and provided evidence.Issue
Whether or not the worker is entitled to wage loss benefits beyond June 17, 2003.Decision
That the worker is not entitled to wage loss benefits beyond June 17, 2003.Decision: Unanimous
Background
Reasons
Claim HistoryThe worker injured his lower back and right hip during the course of his employment as a truck driver on January 11, 2000 while cleaning ice and snow from the entrance of his truck bay.
The Workers Compensation Board (hereafter "WCB") accepted the claim for compensation on the basis of a lumbosacral sprain/strain until June 17, 2003, at which time the WCB found the worker to have essentially recovered from the effects of the compensable injury; any subsequent loss of earning capacity was no longer related to the compensable injury.
The worker appealed this decision to the Review Office, which ultimately upheld the initial decision on October 14, 2004. It is this October 14, 2004 decision that the worker appeals.
Background
On January 11, 2000 at approximately 2:30 p.m., the worker suffered a workplace accident which he described to the WCB as follows:
"I was cleaning the packed snow and ice from my bay overhead door, I was using my right foot to put pressure on shovel to break the snow and ice so my truck wouldn't hit top of door. I felt a sharp pain in my lower back and right hip. Then by Wed. morning I was all stiff in the back and my right leg down to the knee was on fire."
The worker continued to work but saw a chiropractor on January 14, 17 and 21, 2000. The chiropractor found the worker's right sacroiliac joint to be locked. He diagnosed him with sacroiliac disorder. The worker then went on holidays from January 24 to 28, 2000. Upon his return on January 29, 2000, he saw his regular chiropractor who diagnosed him with lumbosacral sprain/strain. The worker continued to work but ultimately stopped on February 10, 2000 due to an increase in physical duties at work.
X-rays ordered by the regular chiropractor showed pre-existing Grade 2 spondylolisthesis of the L5 due to bilateral isthmus defects of the L5. The disc space of L5 was narrowed and there was minor osteophytic lipping on the anterior/superior of L3 and 4. It was anticipated that the worker would be fit for light duties within a couple of weeks.
The diagnosis of lumbar sprain was confirmed by the worker's family physician, who also thought that the worker's pre-existing back condition could affect his recovery.
By March 3, 2000, the worker's treating physician and chiropractor found the worker fit to return to light duties. Unfortunately, this never came about given that his accident employer laid him off.
At about this time, the worker's symptoms changed to his left hip and leg. These symptoms have been relatively consistent since that date.
Diagnostic testing failed to reveal any condition other than his degenerative back condition:
- A July 4, 2000 CT scan revealed Grade I spondylolisthesis at the L5 - S1 secondary to bilateral L5 spondylolysis. There was no evidence of disc herniation, central spinal stenosis or nerve root compression;
- A bone scan on October 4, 2000 showed minor increased activity at the L5 - S1 vertebral level consistent with minor degenerative changes secondary to the spondylolysis/spondylolisthesis. No abnormalities of the left sacroiliac joint were identified.
The worker was then referred to a physiatrist. He was treated for myofascial pain by needling the ligaments at the S1, L5 and T12. In April 2001, the physiatrist thought that he had eradicated most of the myofascial and ligamentous triggers, leaving a discrete tenderness over the zygaphyseal joint at the L5-S1 on the left. However, the worker returned for further treatment several months later.
As the worker was deemed unfit for a general labourer position, a functional capacity examination (hereafter "FCE") was done on May 29, 2001. The testing was not completed due to the worker's increased heart rate. A subsequent FCE in June, 2002 was also unsuccessful as the worker reported that he was unable to complete the testing and became tearful.
He was seen by a psychologist in November, 2001 who opined that the worker suffered from an Adjustment Disorder with Depressed Mood in reaction to the enduring and recent stressors associated with his injury, ongoing pain and discomfort, physical limitations and uncertainty with respect to his ability to return to work. The psychologist suggested that the worker would benefit from a graduated return to work program.
In May 28, 2002, the medical advisor to the WCB opined that there was a high probability that the worker's pre-existing condition was enhanced by the compensable injury. However, he later questioned the full extent of the worker's level of functioning given the unsuccessful FCE in June, 2002.
A physiatrist consultant to the WCB also examined the worker. In 2003, he noted inconsistencies and prominent pain behaviour. On this basis of the examination and review of the worker's claim file, his opinion was as follows:
"On review of the mechanism of injury, I would have expected likely mechanical aggravation of the posterior structures, and mechanical origin of pain related to the pre-existing defect spondylolysis, spondylolisthesis and he would be pre-disposed with this pre-existing condition to developing early degenerative changes. The bone scan would support this as well. The early file mechanical back pain if it was present however appears to have resolved, as there is no evidence in the current clinical examination of any mechanical back pain present or any mechanical low back pain able to be irritated with specific stress tests. He would have a likely increased risk of having flares of mechanical low back pain. There was no evidence on the current examination either of any sacroiliac joint complex irritability."The worker then attended a physiatrist at a rehabilitation clinic who found the worker to have gluteal myofascial trigger points. The worker was needled and encouraged to continue low back exercises. The physiatrist found him fit to return to work driving. He was discharged in May, 2003 and advised to continue with his low back strengthening and stretching exercise.
Shortly thereafter the worker's benefits were cut off by WCB.
Worker's Position
The worker takes the position that the January 11, 2000 workplace accident enhanced a pre-existing back condition. He relies mainly on what he says is the permanent change in his level of functioning since the accident as well as on a May 16, 2004 medical report from his treating physiatrist.
Employer's Position
The employer's position is that the worker's appeal should be denied. In support of his position he mainly relies on the lack of a definitive medical opinion attributing the worker's condition to his workplace accident.
Analysis
The issue before this panel is whether or not the worker is entitled to wage loss benefits beyond June 17, 2003.
As the worker has a pre-existing back condition, the determination of this issue requires us to examine whether, on a balance of probabilities, we find that the worker's reported symptoms after June 17, 2003 are related to the compensable injury. This includes examining WCB Policy 44.10.20.10.
WCB Policy 44.10.20.10
WCB Policy 44.10.20.10 deals with pre-existing conditions. The relevant portions of this policy follow:
The Policy Applied to the Worker's CasePOLICY PURPOSE
Section 4(1) of the Worker's Compensation Act states:
"Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections."
The Worker's Compensation Board of Manitoba will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The Worker's Compensation Board is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.
A. POLICY
1. WAGE LOSS ELIGIBILITY
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.
B. DEFINITIONS
1. Aggravation: The temporary clinical effect of a compensable accident on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable accident.
2. Enhancement: Where a compensable injury permanently and adversely affects a pre-existing condition or makes necessary surgery on a pre-existing condition.
3. Pre-existing Condition: A condition that existed prior to the compensable injury.
It is not disputed that at the time of the workplace accident on January 11, 2000, the worker suffered from a pre-existing back condition.
The worker says however that he had no back pain prior to the workplace accident. He submits that the workplace accident caused his muscles additional stress which has resulted in myofascial pain that has never resolved. This is the opinion expressed by the worker's treating physiatrist:
"The overall pain/objective physical findings dilemma is at play here. The pain, in my opinion, is arising from the soft tissues around the spine and pelvis. There is no indication that he has a neurological impairment. The fact that spondylolisthesis and degenerative change can go undetected for a life time means that this condition is not guaranteed to cause pain and disability. There is more need for the soft tissue to work to maintain the stability if there is a spondylolisthesis however. In my opinion, the combination of pre-existing spinal changes and the repetitive physical effort combined to give the clinical picture."We do not accept this position given the mechanism of injury and the change in symptomotology once the worker was laid off work.
The worker reported that he was clearing ice and snow with a shovel. He was using his right foot to put pressure on the shovel. He felt a sharp pain in the low back and right hip which went down to the right knee. The first chiropractor found his right hip was locked and diagnosed him with sacroiliac disorder. Though his treating chiropractor and physician diagnosed him with lumbosacral sprain/strain, they both opined that the pre-existing back condition, might delay the worker's recovery. However, they both thought that the worker was able to return to work at the beginning of March, 2000. The treating chiropractor's medical reports indicate in fact that the worker's recovery and prognosis were good.
Then things changed. The worker was laid off work. His reported symptoms now involved the left side and his prognosis deteriorated. There was evidence of psychosocial factors and pain behaviour at play.
The most recent diagnosis is myofascial pain. We note that the worker was successfully treated for myofascial pain syndrome in 2001. Since that date, he has not worked at his regular employment. We are unable to find sufficient evidence to relate the subsequent onset of myofascial pain as noted in recent medical reports to his January 11, 2000 compensable injury. Therefore on the balance of probabilities, the worker's current symptoms are not materially related to the January 11, 2000 compensable injury. The worker's appeal is therefore denied.
Panel Members
L. Martin, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
L. Martin - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 17th day of May, 2006