Decision #36/99 - Type: Workers Compensation
An Appeal Panel review was held on February 10, 1999 following receipt of an appeal from the claimant.
Whether the claimant's lower back problems which prompted medical treatment on and after April 9, 1998 are related to the compensable injury of September 8, 1997.
That the claimant's lower back problems which prompted medical treatment on and after April 9, 1998 are not related to the compensable injury of September 8, 1997.
On September 18, 1997, the claimant completed a Worker's Report of Injury or Occupational Disease due to a lower back injury which the claimant stated occurred at work on September 8, 1997. In his report, the claimant stated he developed a sharp pain in his lower back when he tried to lift a monitor which weighed approximately 50 pounds. An Employer's report of injury was received at the Workers Compensation Board (WCB) on September 23, 1998. In this report, the employer indicated that the claimant had been complaining of lower back pain since he started working with the company and that he developed sharp pain when he lifted a monitor.
On September 29, 1997, the WCB accepted financial responsibility for this claim and provided the claimant with payment of a wage loss benefit. Wage loss benefits were provided to the claimant to his return to work date of October 6, 1997.
Medical documentation obtained from the claimant's attending physician reported the claimant had sustained a strain injury to the lower back. Physiotherapy was prescribed and according to the subsequent reports from the physician and physiotherapist, the claimant's condition progressed to the point that he was discharged to return to work effective October 6, 1997.
The claimant attended the offices of the WCB on May 1, 1998 to file a claim for recurring back problems which he related to the compensable injury of September 8, 1997. According to the memorandum on file dated May 1, 1998, the adjudicator noted the following:
- The claimant had returned to work on October 6, 1997 but quit his job on December 30, 1997 due to ongoing problems and personal reasons and that his supervisor was aware of these reasons.
- The claimant started another job on February 2, 1998 in the field of sales which he thought would be lighter however, approximately a week and a half into the job, the claimant noticed increasing back pain. He then left that job after about one month.
- Another job was started on April 8, 1998 however as his back continued to give him problems, medical treatment was sought on April 9, 1998.
- The claimant reported not seeking any medical treatment between October 6, 1997 and April 9, 1998 and that he did not sustain any new accidents to account for his ongoing back complaints.
Medical information was then requested from the claimant's family physician. According to the doctor's first report covering an assessment of the claimant on April 9, 1998, the physician reported gradual onset of left lower back pain with no identifiable injury to account for same. The physician diagnosed the claimant with a left lower back strain however arrangements were being made for a CT scan in order to rule out any neurological involvement as the claimant did present with complaints of numbness radiating into the left buttock and leg. A referral was made for physiotherapy treatment.
On June 2 and June 14, 1998, the file was reviewed by a WCB medical advisor. Based on his review of the file documentation, the medical advisor expressed the opinion that the claimant's current complaints likely would not be related to the compensable injury which he sustained in September, 1997.
Based on this opinion, the Claims Services Division of the WCB wrote to the claimant on June 16, 1998 to advise that the WCB would not be able to accept financial responsibility for the claimant's recurrence of symptoms as it was felt that these problems could not be related to the compensable injury of September 8, 1997.
The claimant filed an appeal with the WCB's Review Office on October 14, 1998. In their decision dated November 13, 1998, Review Office determined that the claimant was not entitled to further benefits under the Act. In reaching this conclusion, Review Office stated the following:
- "Review Office notes the claimant's contention of continuous lower back symptoms between October 1997 and April 1998; but does not find that this has been confirmed by ongoing medical treatments....as might have reasonably been expected.
In addition, Review Office believes the weight of medical evidence supports a conclusion that the claimant suffered a further, and perhaps more severe, injury to the lower back in April 1998....as evident by initial symptoms and pain radiation on the (left) side of the back and lower extremities. These discrepancies do not, in the opinion of Review Office, provide compelling evidence that the back problem in April 1998 had been a continuation of the claimant's former work-related accident."
In early December, 1998, the claimant filed an application to appeal with the Appeal Commission requesting a non-oral file review of his file. Prior to the Appeal Panel review of the file, arrangements were made to obtain a copy of an x-ray result dated October 13, 1998 and the CT Scan result dated June 26, 1998. These test results were interpreted by the radiologists as follows:
X-ray of October 13, 1998
- "LUMBOSACRAL SPINE
A very shallow scoliosis convex to the right is present. No further bone or joint changes are shown. Disc spaces are of normal width.
The SI joints have normal appearances."
CT Scan of June 26, 1998
"Multiple 5mm axial cuts were obtained from L3 to the sacrum and sagittal reformatting performed. The L3-4 and L4-5 levels appear unremarkable. The L5-S1 disc is a little degenerative but otherwise unremarkable. There is no evidence of disc herniation."
The Appeal Panel met on February 10, 1999 to discuss this case and to render its decision.
The issue in this appeal is whether the claimant's lower back problems which prompted medical treatment on and after April 9, 1998 are related to the compensable injury of September 8, 1997.
The relevant subsection of The Workers Compensation Act (the Act) is subsection 39(2) which provides for the duration of wage loss benefits.
Duration of wage loss benefits
39(2) Subsequent to subsection (3), wage loss benefits are payable until
a) the loss of earning capacity ends, as determined by the board; or
b) the worker attains the age of 65 years.
In this appeal we reviewed all the evidence and find that the weight of the evidence, on a balance of probabilities, supports a conclusion that the claimant's lower back problems which prompted medical treatment on and after April 9, 1998 are not related to the compensable injury of September 8, 1997. In reaching this conclusion we placed weight on the following evidence:
- the employers report of injury dated September 18, 1997 indicates that the claimant had been complaining of low back pain since he started with them and records that the claimant had sharp pain when lifting a monitor on September 8, 1997;
- the workers report of injury dated September 18, 1997 indicates the claimant felt a "sharp and agonizing pain" in his lower back on September 8, 1997 after lifting a heavy monitor;
- the first medical report indicates that the claimant was seen on September 9, 1997 when his attending physician records sudden pain in right lower back when lifting. The attending physician notes pain in the right lower back with no radiation and diagnoses strain of the right lower back. The attending physician also records a prior low back injury four years before which was not work related;
- in a report dated September 14, 1997 the attending physician indicates the pain in the lower back is less than seven days ago;
- in a report dated October 5, 1997 the attending physician records that the lumbar spine is non-tender with mild spasm of the lumbar muscles and indicates that the claimant is fit to return to work on October 6, 1997;
- in a report dated October 19, 1997 the attending physician examines the claimant following his return to work and indicates that the claimant was stiff and had a sore left lower back after walking. He finds the lumbar sacral spine non tender with mild bilateral spasm of the paravertebral muscles, he finds the claimant fit for light work avoiding heavy lifting;
- the claimant seeks medical attention from his attending physician on April 9, 1998, approximately six months post injury complaining of a gradual onset of pain in left lower back radiating to the left leg. The attending physician notes that the pain got worse the day before after standing with no identifiable injury and diagnoses left lower back strain and that sciatica should be ruled out. The attending physician notes prior lower back injuries in 1993 and 1997;
- the file information was reviewed by a WCB medical advisor who indicates that the new findings do not appear to be related and that the strain should have resolved in 4 to 6 weeks and notes that the claimant complains of pain on prolonged sitting as well as standing;
- a CT scan of the lumbosacral spine dated June 26, 1998 reveals that the L5-S1 disc is a little degenerative but no evidence of disc herniation;
- WCB memorandum to file dated May 14, 1998 indicates that the claimant was complaining of a lot of pain in his low back going to his right side and right hip area.
We find that the evidence, on a balance of probabilities supports a conclusion that the claimant's lower back problems commencing on or after April 9, 1998 are not related to his compensable injury of September 8, 1997. We find that the claimant sustained a lower back strain for which he sought and received medical attention from the date of the accident until early October 1997 when he returned to work. The medical evidence reveals that this strain injury improved steadily with medical treatment and physiotherapy and had resolved at the time of the claimant's return to work. The evidence also reveals that the claimant did not seek further medical attention from early October 1997 until April 9, 1998, when the evidence first suggested radiating symptoms reported by the physician as being of gradual onset with no identifiable injury. In light of the original diagnosis of a strain injury we are of the view that the claimant's symptoms as reported in April 1998 are not related to the compensable injury of September 8, 1997. Therefore the claimant's appeal is denied.
D.A. Vivian, Presiding Officer
P. Challoner, Commissioner
R. Frisken, Commissioner
Recording Secretary, B. Miller
D.A. Vivian - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 24th day of February, 1999