Decision #184/99 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on November 17, 1999, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on November 17, 1999.

Issue

Whether or not responsibility can be accepted for the worker's ongoing back complaints or any wage loss benefits beyond January 28, 1996.

Decision

That responsibility cannot be accepted for the worker's ongoing back complaints or any wage loss benefits beyond January 28, 1996.

Background

On August 31, 1992, while performing the duties of a custodian, the claimant slipped on a puddle of water that had leaked from the roof. The claimant landed on her tailbone and elbows and then laid flat on her back with her legs bent up until her supervisor came in. The diagnoses were a muscular strain to the back and contusion. X-rays of the lumbosacral spine were considered normal. The claimant was then referred for physiotherapy treatments and returned to a new position at work commencing November 25, 1992. It was also noted was that the claimant has two compensable low back injuries which occurred in 1992 and 1994 while working as a custodian.

On February 12, 1993 the claimant ceased work due to increasing low back pain. Wage loss benefits were paid between February 13, 1993, and April 30, 1993 when it was determined by the Workers Compensation Board (WCB) that there were minimal objective findings to support further benefits. On May 3, 1993, the claimant returned to work on a graduated basis.

In January 1994, the claimant contacted the WCB indicating that she had been vacuuming at work and when walking down the hall experienced low back pain and pain down both legs. A new claim was initiated with the date of accident being January 6, 1994 (Claim No. 9403 0097/20). The diagnosis reported by the attending physician was a back strain. On January 7, 1994, the claimant commenced receiving wage loss benefits.

On May 17, 1994, a rehabilitation medicine specialist (psychiatrist) reported that in March 1993, the claimant showed signs of post traumatic ligamentous pain at the lumbosacral junction and overload myofascial pain of the lumbar and pelvic muscles. When examined again in January 1994, there was no radiographic abnormality but there was a persistent element of mechanical low back pain probably due to chronic ligamentous damage at the lumbosacral junction. This was associated with secondary overloading of the lumbar and pelvic muscles producing regional myofascial pain.

The physiatrist felt that the claimant was not totally disabled and required no further active physiotherapy. A graduated re-entry to work with restrictions was recommended. In a further report dated August 23, 1994, the physiatrist indicated that the claimant commenced a graduated return to work program on July 25, 1994, however the physical demands of her work were such that she was unable to continue with the program. Clinically, the claimant was back to where she was in April/May, 1994.

On October 6, 1994, a WCB medical advisor believed that the claimant was suffering mainly from a musculoligamentous type of injury in the lower back, which was recurrent in nature. The claimant also had a very tender facet joint in the lower lumbar area more so on the right side. The medical advisor felt that the claimant had not recovered enough to return to her pre-injury occupation and that restrictions for 3 - 6 months were appropriate. A physical reconditioning program was recommended and was arranged between October 24, 1994 and November 18, 1994.

In the interim, the employer was unable to accommodate the claimant with duties within the suggested work restrictions. The claimant was then enrolled in a work hardening program between March 29 to May 1, 1995 however this turned out to be unsuccessful due to ongoing pain complaints.

The claimant underwent a lumbar spine CT scan on May 18, 1995. The results showed a mild central and left paracentral disc bulging at L4-5, which approached the left L5 nerve root. In June 1995, a lumbar myelogram revealed a small posterior extra-dural defect at L4-L5, which could simply be related to diffuse posterior bulging of the L4-L5 disc. There was very minimal edema of the left L5 nerve root. The changes were not surgically significant. A CT lumbar myelogram dated June 15, 1995, showed a mild diffuse posterior bulge of the L4-L5 disc with no significant deformity of the adjacent thecal sacs or nerve roots.

On August 28, 1995, an orthopaedic specialist reported that the claimant's complaints were very much in excess of objective findings. He did not believe that chemonucleolysis or surgery in any form was indicated. He thought that the claimant had a small degenerative discogenic back problem and a fairly large superimposed pain behaviour syndrome.

Another orthopaedic specialist reported that he saw the claimant on October 11, 1995 for aching and discomfort situated over the lower lumbar area with mild radiation to the posterior aspect of the left thigh and left leg. He felt the claimant would benefit from physical therapy for her mechanical low back pain syndrome and a referral was made to a physiatrist.

On November 10, 1995, the claimant was seen at the WCB's Pain Management Unit and a sleep disturbance was identified.

On December 1, 1995, following consultation with a WCB medical advisor, the claimant was advised by primary adjudication that there were no longer any physical findings, which prevented her from participating in a return to work program. The claimant was advised that even though a sleep disturbance problem was identified the other medical reports showed that she was recovering well from her low back strain.

A return to work date had been arranged for the claimant beginning December 7, 1995. The claimant would initially return to work at 2 hours per day and this would increase to 3 hours per day effective January 2, 1996. As of January 29, 1996, the claimant was expected to work 4 hours daily and then would go on her employer's payroll. File information revealed that the claimant did not continue with the graduated return to work program after December 7, 1995, as she only lasted 1 hours at work before she felt pulling in her back and numbness/tingling in her left leg.

On December 15, 1995, primary adjudication wrote to the claimant indicating that wage loss benefits would not be extended past January 28, 1996, as the evidence established that she was capable of participating in the graduated return to work program.

On January 3, 1996, the claimant contacted her adjudicator requesting retraining as an optometrist assistant as she felt she was unable to return to custodial work. On January 11, 1996, the claimant was advised that there was little objective medical information to suggest that she was unable to perform her regular work duties or that she was unable to participate and continue the return to work program. There were no findings that would suggest she would require retraining in another type of lighter work.

On February 26, 1996, an advocate for the claimant contended that based on medical opinion and a Work Evaluation Assessment, the claimant could not assume her janitorial work because of her lower back condition. Prior to considering the appeal, Review Office obtained an opinion from a WCB orthopaedic consultant on April 4, 1996.

The file reveals that the claimant started a new job on her own initiative as a receiptionist/assistant in an optometrist's office in February, 1996 where she worked until March, 1999.

In a decision dated April 19, 1996, Review Office determined that the claimant was not entitled to wage loss benefits beyond January 28, 1996. Review Office was unable to accept, on a balance of probabilities, that there continued to be a relationship between the worker's ongoing complaints and the work injuries sustained on August 31, 1992 and January 6, 1994. Review Office stated the type of injuries sustained by the claimant were generally of temporary duration and given the absence of ongoing objective medical evidence to support the contrary, it believed that the effects of the compensable injuries had now resolved.

On February 18, 1998, a solicitor, acting on the claimant's behalf, submitted reports from the family physician dated April 27, 1998, and from a physiatrist dated August 1, 1997, and February 6, 1998. It was the claimant's position that the decision to terminate all benefits as of January 1996 was not warranted based on the medical evidence and the situation with respect to her employment. The claimant felt that light duty work with her employer was not available and that recent medical information indicated that she was not able to return to that employment.

Following consultation with a WCB orthopaedic consultant on March 13, 1998, Review Office determined that no responsibility could be accepted for the worker's ongoing back complaints or any wage loss benefits beyond January 28, 1996. In its decision dated March 20, 1998, Review Office concurred with the WCB's orthopaedic consultant that the many diagnoses postulated by the physiatrist were not a consequence of either the
1992 accident or the more recent 1994 accident. It remained the opinion of Review Office that the worker had achieved recovery from these two accidents by January 28, 1996, and she was therefore not eligible to receive ongoing benefits beyond that date. Review Office did not believe that the worker had sustained any permanent partial residual impairment as a result of either accident as speculated by the physiatrist.

On August 17, 1999, the solicitor appealed Review Office's decision and requested an oral hearing. Additional medical reports were submitted dated April 27, 1998, August 24, 1998 and February 15, 1999. An oral hearing later took place on November 17, 1999.

Reasons

The issue under appeal is whether or not responsibility can be accepted for the worker’s ongoing back complaints or any wage loss benefits beyond January 28, 1996.

The relevant subsection of The Workers Compensation Act (the Act) is 39(2) which provides for the duration of wage loss benefits. Relevant WCB policy is Section 44.10.20.10, Pre Existing Conditions

As noted in the background, the claimant suffered two low back injuries in 1992 and 1994 while working as a custodian, for which the Workers Compensation Board (WCB) accepted responsibility. In August 1992, the claimant slipped on a puddle of water, sustained a back injury, and missed three months of work. After working for three months, the claimant was then off work for an additional three months, returning to work in May 1993 on a graduated basis.

On January 6, 1994, the claimant was vacuuming at work and a short time later experienced low back pain and pain down both legs while walking down a hall. There were two failed return to work initiatives, in July 1994 and December 1995, prior to the termination of benefits by the WCB on January 28, 1996.

After reviewing all the evidence on the file as well as the evidence and submissions presented at the hearing, we find that the evidence does not support, on a balance of probabilities, that the claimant’s ongoing back complaints beyond January 28, 1996 are related to her earlier compensable injuries in 1992 and 1994. As a result, there would not be any entitlement to wage loss benefits after this date. In support of these findings, we note the following evidence:

  • the claimant had been receiving treatment for low back pain for a one year period preceding her first work injury in August 1992. On March 30, 1993, a treating physiatrist was prepared to release the claimant into a gradual return to work program noting that,

“This patient shows two clinical problems. Firstly she has mechanical pain at a lumbosacral level which is probably ligamentous since the picture is not typical of pain from a facet joint. Additionally, she has secondary myofascial pain in the right quadratus lumborum muscle.”

  • a WCB medical advisor reviewed the file on April 20, 1993, and noted that “the bulk of this claimant’s disability is related to pain rather than loss of function of the lumbar spine.” He also noted that the ongoing nature of her symptoms continued despite considerable physiotherapy treatment and saw no value in providing further therapy.
  • the claimant’s attending physician noted a diagnosis of a back strain in her first report of January 19, 1994, with tenderness of the S2 joint, and normal strength, sensations and reflexes.
  • a report by a treating physiatrist dated May 17, 1994 summarizes two examinations of the claimant in April and May 1994. On April 19, 1994, he noted that the claimant had a symmetric gait pattern, normal range of motion, and straight leg raise test was unremarkable bilaterally. On May 17, 1994, he noted that spinal posture was improving, but that there was still pain in the lumbosacral junction and tenderness over the lumbosacral facet joints. He also notes some myofascial taut bands on the right side. He concluded that the claimant was not totally disabled, and did not require further active physiotherapy and required a graduated return to work program with restrictions. In a subsequent June 28, 1994 letter, the physiatrist noted a lessening of trigger point activity and indicated that he would not be providing further treatment.
  • a report by a WCB medical advisor, dated October 6, 1994 discusses a call-in examination of the claimant. His opinion was that the claimant was suffering from a musculoligamentous type of injury to the lower back that was recurrent in nature. He also noted a very tender facet joint in the lower lumbar area, and placed 3 – 6 months of restrictions on the claimant, together with a recommendation that her stretching program be augmented by a reconditioning program. In a subsequent memo by the WCB medical advisor in January 1995, he makes first note of concerns regarding the frequent references to pain during the reconditioning programs and recommends close monitoring.
  • a discharge report from the external therapy group, dated May 15, 1995, noted that the claimant presented as very pain focused during a work hardening program from March 29 to May 1, 1995, which was considered unsuccessful due to severe pain reports. The claimant was complaining of severe pain in the tail bone, shooting pain and numbness in the left leg, but was vague about the specificity of symptoms in the leg. On a pain scale, the claimant reported 7-9/10. .
  • a CT lumbar myelogram performed on June 15, 1995 reported a mild diffuse posterior bulge of L4-5 disc with no significant deformity of the adjacent thecal sacs or nerve root and noted very minimal edema of the left L5 nerve root, which the radiologist noted to be surgically insignificant.
  • a report by an attending orthopaedic surgeon dated November 1, 1995 summarized his findings from examinations of the claimant on August 2, 1995 and October 1, 1995. He noted that her concerns were about some low back pain with radiation to the posterior aspect of the left thigh and left calf, with associated paraesthesia and weakness. His clinical findings were that the claimant’s lower spine was straight with some localized tenderness at L4/5 vertebrae as well as on the dorsum of both sacroiliac joints. Range of motion of the back was noted to be satisfactory, straight leg raising was noted to be 80 degrees bilaterally. Muscular power, sensation and peripheral pulses of the legs were found to be normal, and likewise reflexes were present and equal in both legs. He noted no significant bony or joint abnormalities in lumbosacral x-rays taken in 1994, and reviewed recent CT scans that showed slight bulging at L4-5 interspace level with no significant nerve root compression. His impression from the August 2, 1995 examination was that the claimant was recovering from a chronic low back sprain with some evidence of mild left sided sciatic neuralgia. On his second examination, we note that his findings were similar, with a recommendation that she participate in some physical therapy and that she “was strongly advised to resume some light work as I felt that this would be beneficial in her case.”
  • the claimant was referred by this orthopaedic surgeon to a second orthopaedic surgeon, who saw her on August 28, 1995. His report, dated August 29, 1995 states,

“I believe her complaints are very much in excess of objective findings and I do not believe that chemonucleosis or surgery of any form is indicated. I think that she does have a small degenerative discogenic back problem and a fairly large superimposed pain behavior syndrome.” [emphasis ours]

  • the claimant was subsequently referred to the WCB Pain Management Unit, and was interviewed on November 7, 1995 by a WCB medical advisor. In a memo summarizing a case conference held on November 23, 1995, the WCB medical advisor stated,

“This woman has a paucity of findings on physical exam. Given that soft tissue injury alone is the working diagnosis she may not qualify for even preventative restrictions. I was unable to get a clear picture of this woman’s expectations except that she seemed to consider a RTW with pain unacceptable. I have placed a call to her family doctor (she is to call me back) to explain further how the decision to initiate VR works. Hopefully, if her Dr. supports a more realistic plan, some of her presentation factors will decrease or stop.” [emphasis ours]

  • we note that the claimant’s attending physician’s reports, starting on February 1, 1994, only two weeks after the injury, continually advocated that the claimant would not be able to return to her pre-accident employment and should be considered a candidate for alternative vocational retraining for a permanent job change. We strongly concur with the WCB medical advisor’s comments in her examination notes of November 7, 1995, where she stated, “A strong perpetuating factor for disability is the family doctor’s advocative position with regards to retraining starting early in this claim.”
  • a memo dated November 24, 1995 by the WCB medical advisor summarizes a conversation with the claimant’s attending physician in which she outlined the WCB’s constraints in initiating retraining for what was likely a soft tissue injury.
  • the claimant subsequently returned to work on December 7, 1995 on modified duties and completed 1.5 hours of work, reporting increasing back pain with tingling to her left leg. She was wearing a lumbosacral belt, and was doing activities such as dust mopping of classrooms and stairs. Medical reports immediately thereafter report subjective reports and clinical findings similar to those present prior to the return to work.
  • evidence on the file and given by the claimant at the hearing is that she started a new job as a receptionist/assistant in an optometrist’s office in February 1996, and that she was able to work in this position until March 1999, when she left her position due to back complaints and fatigue.
  • a WCB orthopaedic consultant was asked to review the file. In a memo of April 4, 1996, his opinion was that the compensable injury was consistent with a low back strain with possible mild (his emphasis) left sciatica. When asked if the claimant was still suffering from the effects of the compensable injury, he replied in the negative, noting the reports of the physiatrist in 1994, and the two orthopaedic specialists in 1995 who report little to find on physical examination. He also notes the WCB medical advisor’s interview (November 1995) and other reports which suggest problems other than the regional musculoskeletal injury were playing a role in any ongoing symptoms.

After a review of all the evidence, we concur with the conclusions reached by the WCB orthopaedic consultant, and find, on a balance of probabilities, that the claimant had suffered a low back strain in 1994 which had resolved by the time benefits were terminated on January 28, 1996.

At the hearing, the claimant’s representative directed our attention to medical reports regarding treatment subsequent to the termination of benefits, arguing that they established an ongoing causal relationship between the claimant’s subsequent medical conditions and the compensable injury. In particular, he referenced reports submitted by a second treating physiatrist and a consulting orthopaedic surgeon.

We note that the second physiatrist’s report dated August 1, 1997 referred to eight visits between March 8, 1996 and May 6, 1997. He also noted a fall on August 9, 1996, which exacerbated pain in the claimant’s left leg, and as a result he arranged an urgent CT scan of L3-S1 which ruled out any evidence of spinal stenosis or disc herniation. In reviewing the diagnoses provided by the physiatrist in his report, we are struck with the array of diagnoses at each visit. His summary is that “she suffered lumbosacral facet joint injury, musculigamentous strain and disc/tear/disc bulging or herniation causing irritation of the L5/S1 nerve roots.” There are also references to mild residual mechanical low back pain, spondylosis of the lumbosacral spine, mild discogenic pain, and mechanical myfascial pain syndrome. The reports also contain discontinuous, inconsistent and contrary findings amongst visits, for example one report indicated disc herniation whereas another finds no evidence of disc herniation; similar inconsistencies are noted regarding the claimant’s radicular pain.

With due respect, we note that many of these findings are not supported by the radiological, diagnostic, and clinical evidence on the file, nor were they identified or supported by a number of specialists who had examined the claimant in 1994 and 1995, which we find is the most proximate evidence, as summarized above. We find there is no causal relationship between the conditions reported by the physiatrist and the claimant’s original compensable low back injury. In reaching this conclusion, we also place weight on the assessment of the physiatrist’s report by the WCB orthopaedic consultant in a memo dated March 13, 1998 who similarly found no continuing causal relationship.

The claimant’s representative also provided a report dated February 15, 1999, from a consulting orthopaedic surgeon who examined the claimant on July 14, 1998, and reviewed the medical information apparently provided by the representative. His final diagnosis was, “Ongoing mechanical lumbar back pain secondary to lumbosacral disc injury without disc displacement or nerve root compromise. This has caused ongoing pain and reduced spinal endurance and a back at risk.”

We note that the orthopaedic surgeon provided a critical analysis of the diagnoses provided by other medical practitioners involved in the file, but that his final diagnosis has a degree of non-specificity that does not establish a causal relationship between the claimant’s current symptoms and the earlier compensable event. In this regard we note the following from his report:

“The exact anatomical etiology of the back pain was not elicited from physical examination or CT myelography.”

“There was no indication for invasive treatment or other specific investigation or therapy.”

“She also did not evidence chronic pain syndrome or chronic pain behaviour.”

“All the medical investigation reveals is that there is no pathology out of place that could be causing chronic pain or nerve compromise. None of the medical investigation is able to ascertain whether there has been deep structural injury or change without anatomical displacement. An MRI would be better able to decide this. However, seven years have passed from the original injury and it may not be able to state what was the cause of any disc wear.”

We find that the additional medical evidence of the claimant’s physiatrist and consulting orthopaedic surgeon regarding the claimant’s medical condition subsequent to the termination of benefits does not, on a balance of probabilities, establish a causal connection to the claimant’s compensable injury. Rather, as noted earlier, we find that the preponderance of evidence suggests that the claimant had suffered a soft tissue low back strain which had resolved by the time her benefits had been terminated on January 28, 1996. As such, there is no basis to extend wage loss benefits beyond that date. Therefore, the claimant’s appeal is denied.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

D.A. Vivian, Presiding Officer - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 22nd day of December, 1999

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