Decision #121/06 - Type: Workers Compensation

Preamble

This appeal deals with the causal relationship of the worker's ongoing back symptoms to his March 2, 1998 compensable injury and more specifically responsibility for ongoing pain medication for his back symptoms.

On March 2, 1998 the worker had a severe fall at work. He suffered injury to his head, left knee, right wrist and lower back as well as multiple contusions.

The worker underwent medical treatment for his back and was prescribed medication however his back complaints continued. Diagnostic testing revealed pre-existing degeneration which the Workers Compensation Board (the "WCB") determined were the cause of the worker's ongoing symptoms. It therefore advised the worker in November, 1999 that it considered the worker recovered from the effects of his compensable accident. The worker appealed this position to Review Office, which upheld it in a July 29, 2005 decision. It is this decision that the worker appealed to the Appeal Commission.

On June 29, 2006, an appeal panel hearing was held at the Appeal Commission. The worker attended and provided evidence. His family physician also attended and provided evidence on his behalf. An advocate for the employer also attended and provided submissions. The panel discussed this appeal on June 29, 2006.

Issue

Whether or not responsibility should be accepted for the worker's ongoing lower back complaints.

Decision

That responsibility should not be accepted for the worker's ongoing lower back complaints.

Decision: Unanimous

Background

Reasons

Background

On March 2, 1998, the worker was walking down a flight of stairs when his foot slipped on the metal trim. His body turned and he tried to hold onto the railing but his lower body continued to turn and he fell down backwards, somersaulting down some 17 to 18 feet, and hitting the concrete wall at the bottom. The worker was taken to a local hospital for treatment. He complained of headache, dizziness and a painful lumbar spine and left knee.

The worker has since undergone a great deal of medical testing and treatment for his injuries. As the issue before the panel relates to the worker's back condition, we will restrict our comments to the evidence on file which is pertinent to this issue.

Given the worker's low back complaints and extensive bruising over the lumbosacral region, the worker was sent for an x-ray of his lumbosacral spine on March 10, 1998. The results were as follows:
"Early degenerative spurring is noted at some of the vertebral bodies. There is a compression deformity of L1 with loss of height of 10% of the body anteriorly. This was present on a previous examination of 1986. No new or acute abnormalities of the spine are seen."
A September 25, 1998 WCB memorandum to file notes that the worker advised that his lower back was still causing him problems but at the time did not think that it would interfere with him returning to work.

In a progress report dated October 2, 1998, the treating physician reported that the worker had unresolved back pain. He reported aching and stiffness in the sacral area. He displayed tenderness over the T4-5 spinous processes. Range of motion was full.

On October 14, 1998, the treating physician explained the nature of the worker's back problems:
"…His back problems are in the context of long-standing minor back pain of a mechanical nature, which the fall has exacerbated. However, I don't think that back problems would limit his ability to perform his job."
A WCB medical advisor reviewed the file information on October 26, 1998. His opinion was:
"The [treating physician] considers the back problems as long standing. Any current problems are therefore due to [pre-existing condition]. He has recovered from back problems of [compensable injury] of March 98.
Subsequent medical reports from the family physician indicate that the worker continued to complain of chronic low back pain with decreased range of motion and mobility.

The worker underwent physiotherapy treatments between January 28, 1999 and March 10, 1999 and September 7, 1999 to December 1999 inclusive. A December 9, 1999 WCB memorandum to file recording a conversation with the physiotherapist notes that the worker was still experiencing spasm at his L3-5 with range of motion spasm.

On November 30, 1999, the WCB advised the worker that it was no longer accepting responsibility for his continuing back symptoms.

The worker's family physician did not support this position. His resident wrote the WCB on March 17, 2000 advising:
"I believe this [cessation of benefits] was done on the grounds that his back pain was felt to be due to a previous injury that had existed prior to his accident of March, 1998. He had minor back complaints that at no time prevented him from working. To the best of our knowledge, [the worker] has had no significant back injury prior to his injury in 1998…"
Then on May 12, 2000 the family physician wrote again:
"…his low back pain…[has] continued to pose problems for him… there is a question whether or not there was a pre-existing back injury. He was seen with an episode of low back ache in November of 1985, and had a recurrent episode of this in 1995. These are the only two occasions when he has presented to my office in the thirteen years prior to his injury in 1998. Both of these conditions resolved with a short period of treatment, and I do not feel that he had a significant problem with his back prior to his fall…Physiotherapy was controlling his pain, though I do not think it gave him much improvement in function…"
The worker was subsequently referred to a sports medicine specialist by his family physician for assessment of his back. On August 29, 2000, the specialist examined the worker. He noted tenderness of the lumbar paraspinal muscles and lower lumbar segments, pain in the hip and low back and abnormal illness behaviour. He referred him for a CT scan of his lumbar spine which was done on October 5, 2000.

The CT scan revealed:

"The L2-3 disc is degenerative with mild diffuse posterior and right posterolateral disc prominence. There are anterior and lateral osteophytes. The disc material approaches the thecal sac and may well approach the right L3 root.

At the L3-4 there are similar degenerative changes with diffuse posterior and left posterior and lateral disc prominence approaches the thecal sac and the left L4 root. The scan quality is not optimal at this level due to patient motion.

The L4-5 level is well maintained.

There is spondylitic spondylolisthesis of L5 on S1. The spinal canal diameter is well maintained. There is no evidence of focal disc protrusion.

Impression:

Disc degeneration with disc space narrowing and posterior disc prominence with associated shallow disc protrusions at L2-3 and L3-4 as described. Image quality at L3-4 is degraded by patient motion."

On October 29, 2000, the sports medicine specialist saw the worker again. His report of same date states:

"[The worker] is seen for review of his CT scan. He has L2-3 degenerative changes with right posterolateral disc prominence. The disc material approaches the thecal sac and may well approach the right L3 root. At L3-4 he has similar changes with suspicion on contact of the thecal sac and the left L4 root. L4-L5 is unremarkable. L5-S1 manifests a spondylitic spondylolisthesis. The spinal canal is well maintained there.

This indicates that Mr. [the worker] does have some significant discopathy with a spondylolisthesis.

He is using Celebrex now and feeling better with this. He is using Paxil, and Tylenol #3. I have advised him to again consult with yourself regarding changing the Tylenol #3 to a more long-acting narcotic…

It is evidence that [the worker] has multi-level spinal discopathy, with a spondylitic spondylolisthesis. At this time, I think it is mandatory for him to be involved in a spinal stabilization program. Increasing his narcotic dose, to a long-acting narcotic may help him to achieve greater spinal stability..."

On November 22, 2000, a WCB medical advisor opined that based on the CT scan findings of multilevel degenerative changes the worker's back symptoms were likely related to his pre-existing condition.

The worker was assessed at the WCB's Pain Management Unit on January 12, 2001 to determine whether he suffered from chronic pain syndrome. The assessment was negative. The Pain Management Unit found that the worker's pain did not result in a marked disability proportionally affecting his occupational, social and recreational areas of functioning.

As the worker's back pain persisted, he was referred for an epidural injection. This was done in June 2001. The worker experienced good pain relief for two weeks. An August 27, 2001 report by the sports medicine specialist noted improving radiculopathy in his spinal stenosis.

This pain relief is echoed in an August 9, 2001 report by the worker's treating psychologist:
"…he reported that this injection had made a "huge difference" and that although his pain was still present, he no longer felt the stabbing/sharp quality to it. He reported a significant increase in activity, with him increasing the pace of walking, as well as increasing his level of activities with other family members…"

However, in a report dated January 13, 2002, the sports medicine specialist indicated that the injections decreased the worker's leg pain but did not eliminate the low back and leg pain.

On April 17, 2002, the family physician reported that the worker continued to have significant back pain requiring Tylenol #3's to control the pain. The pain would come and go but he had very limited ability to sustain a sitting or standing position for any length of time and was extremely limited in the work that he would be able to do.

The worker was prescribed long acting Codeine. The family physician explained the reason for the prescription:
"…[The worker] has been a patient of mine since 1985. Going through my records here, he has had only two minor complaints about his back from 1985 until the time of his fall. Since that time, he has had incapacitating low back pain requiring long-acting Codeine on a regular basis to control this, as well as headaches and loss of sense of smell which are directly related to the fall that he had in 1989 [sic]…"
On May 4, 2005, the worker was informed that the WCB was unable to accept responsibility for his Codeine medication to manage his low back pain as it was felt that his low back pain was unrelated to the compensable injury of March 2, 1998.

The case was reviewed by a WCB orthopaedic consultant on June 28, 2005. It was his opinion that the worker's back injury of March 2, 1998 only caused a contusion and temporary aggravation of pre-existing degenerative changes in his lumbosacral spine. He did not find any evidence that these degenerative changes were in any way permanently affected by the compensable injury. He did however think that the worker's ongoing symptoms were as a result of the pre-existing degenerative changes.

Worker's position

The worker says that although he may have had some degeneration in his back before his compensable injury, he was fully functional with the exception of some short term episodes. Since the accident he has been in constant pain with limited mobility. He stresses the traumatic nature of the fall and the number of times his spine hit the stairs during the tumble in support of his position that his ongoing back complaints are related to the compensable injury.

Employer's Position

The employer says that the worker's back symptoms are not related to the compensable injury. It says that it is related to his pre-existing degenerative condition.

Analysis

To accept the worker's appeal we must find that his ongoing back symptoms are causally related to his compensable injury. We are unable to make that finding.

The worker suffered from pre-existing degenerative disc disease. Though he did not have many symptoms and was not in pain like he is today, the x-ray taken shortly after his fall revealed similar results to those x-rays taken 2 years before the accident.

The true extent of the worker's degeneration was not revealed until he had a CT scan in 2000. It was at this time that it was discovered that he had spondylolisthesis caused by degeneration. There is no convincing evidence that the fall in any way enhanced the degenerative process that the worker was undergoing before the accident.

The worker's family physician testified that many people have degeneration without symptoms. We accept that opinion. However, we also accept that some people do become symptomatic, especially after a trauma. That does not mean however that the trauma caused or enhanced the degeneration.

We have turned our minds as to whether the compensable injury caused the worker a chronic pain syndrome related to his back symptoms. This diagnosis was examined by the WCB Pain Management Unit and refused. There is therefore no convincing evidence that the worker suffers from a pain disorder that is causally linked to the compensable injury.

The WCB accepted the worker's back symptoms as contusions and an aggravation of the pre-existing degeneration. In the summer of 1998 he returned to work. Unfortunately the return to work was not successful for reasons unrelated to his back symptoms. In September, 1998, the worker was still willing to return to work and his physician concurred with this, as it related to his back.

In these circumstances, we find that the worker suffered contusions and a temporary aggravation to his pre-existing degenerative back condition. His ongoing back complaints are more likely related to his pre-existing degenerative back than his compensable injury. For these reasons, the worker's appeal is denied.

We do note however that the worker's main reason for this appeal was to maintain coverage for his Tylenol 3. The worker's family physician appears to have prescribed the Tylenol 3 for conditions other than his back symptoms. The continuing responsibility for Tylenol 3 for these other conditions does not appear to have been adjudicated by the WCB. We therefore recommend that this matter be dealt with by the WCB.

Panel Members

L. Martin, Presiding Officer
J. MacKay, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Martin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 11th day of August, 2006

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