Decision #125/06 - Type: Workers Compensation
Preamble
The worker was injured on June 8, 2004 when he fell from a six foot scaffold. He applied for and received benefits from the Workers Compensation Board (WCB). Wage loss benefits were paid to April 21, 2005 at which time the WCB determined that the worker had recovered. The worker appealed this decision.An appeal panel hearing was held on November 2, 2005, at the request of an advocate, acting on behalf of the worker. The panel discussed this appeal on November 2, 2005 and again on July 11, 2006.
Issue
Whether or not the worker has recovered from the effects of the June 8, 2004 compensable injury.Decision
That the worker's ongoing symptoms are not related to the effects of his June 8, 2004 compensable injury.Decision: Unanimous
Background
On October 26, 2002, the worker sustained injuries to his right hand, shoulder, and ribs. The worker missed 323 days of time loss as a result of his injuries. By January 9, 2004, the WCB determined that he had recovered from his compensable injuries and could return to work.The worker returned to work and reported that on June 8, 2004 he fell from a six foot scaffold and injured his right hip, back, neck and head.
The worker sought medical treatment from his physician and was diagnosed with contusions to his back. Pre-existing conditions outlined by the physician were "prior chronic myofascial pain ? [questionable] - R cervical radiculopathy".
X-rays of the pelvis, lumbar spine, chest and right ribs were taken on June 8, 2004. A suspected compression fracture of the first lumbar vertebrae was noted on the radiological report.
On June 15, 2004, the 2004 claim was accepted by the WCB and benefits were paid to the worker commencing June 9, 2004.
On July 15, 2004, the worker advised his WCB adjudicator that he was having a lot of pain in his lower back and that he was taking eight Tylenol 3's per day. The pain went from his lower back into his right hip and down his leg. He also noticed pain when standing.
The treating physician provided a report dated August 23, 2004 which stated, in part, that the current diagnosis of the worker's medical status was chronic myofascial periscapular pain syndrome with possible cervical radiculopathy. With regard to the June 2002 accident, the treating physician noted that an x-ray showed a compressed fracture of L1.
On September 9, 2004, the worker advised his case manager that he had pain in his neck, back and into his right hip and that he was walking with a cane. He said his treating physician was arranging for him to see a neurosurgeon and that he was going for a CT scan.
A CT scan report of the lumbosacral spine dated January 10, 2005 stated that the L2-L3, L3-L4 and L4-L5 levels were unremarkable. There were mild bilateral degenerative changes at L4-L5. At the L5-S1 level there was no evidence of disc herniation, spinal stenosis or nerve root compression.
On January 24, 2005, a WCB medical advisor examined the worker and said that his examination was quite limited due to the worker's expressions of pain. He stated it was impossible to relay an anatomic diagnosis for the worker's ongoing symptoms.
In response to questions posed by primary adjudication dated February 3, 2005, the WCB medical advisor indicated that he found no evidence of myofascial pain syndrome in the worker's upper back area during his examination on January 24, 2005. He also found no evidence of residual symptoms related to the worker's 2002 claim.
On February 22, 2005, a medical advisor and psychological advisor from the WCB's Pain Management Unit (PMU) interviewed the worker. In a subsequent PMU case conference held on March 17, 2005, it was determined that the worker did not meet the diagnostic criteria for a chronic pain syndrome and that he was not experiencing a major depression or any other mood disorder.
In a memo to file dated April 11, 2005, a WCB case manager indicated that he discussed the case with the two WCB medical advisors who interviewed the worker on February 22, 2005. The case manager noted that it was not clear as to whether the worker sustained a compression fracture of L1. While the x-ray of June 8, 2004 suspected this, it was never confirmed and the CT scan did not reveal any findings of this. Even if a compression fracture was the diagnosis, normal recovery time had long since past. The case manager also noted that it was questionable as to what would come out of the worker's referral to a neurosurgeon and that there was no psychological diagnosis to explain the worker's pain symptoms. There was no medical diagnosis to account for the worker's ongoing symptoms and that he may benefit from a work hardening program.
Based on the WCB examination findings of January 24 and February 22, 2005 and the normal CT scan findings, the case manager rendered the following decisions on April 11, 2005:
- that no change would be made to the January 9, 2004 decision on the worker's 2002 claim which advised him that he was considered to have recovered from that compensable injury; and
- that the worker was recovered from the effects of his June 8, 2004 compensable injury and therefore wage loss benefits would be paid to April 21, 2005 inclusive and final.
Prior to considering the advocate's appeal, Review Office referred the case to the WCB's healthcare branch to answer several questions pertinent to the case.
In a July 22, 2005 decision, Review Office determined that the worker had recovered from the effects of his June 8, 2004 injury. In reaching its decision, Review Office noted the opinion expressed by the WCB medical advisor on January 24, 2005 when he stated that the worker's symptoms on examination did not correlate with an L1 compression fracture. Reference was made to an x-ray report dated January 30, 2003 which noted the presence of a compression fracture of T11 and L1. This indicated to Review Office that the L1 compression fracture was an old fracture. Review Office found no evidence to show that the worker suffered anything more than a back contusion as diagnosed by his attending physician on June 8, 2004.
On November 2, 2005, an oral hearing was held at the worker's request. Following the hearing and after discussion of the case, the appeal panel requested additional information from the worker's treating physician along with a copy of a 2003 x-ray report.
On November 25, 2005, all interested parties were provided with copies of the medical reports that were received by the panel and were asked to provide comment.
On December 19, 2005, the panel decided to arrange for the worker to be seen by an independent medical examiner prior to rendering its final decision. This examination took place on May 11, 2006 and the examination report of June 15, 2006 was provided to the interested parties for comment. On July 11, 2006, the panel met further and considered a final submission from the worker's advocate dated July 10, 2006.
Reasons
Worker's PositionThe worker attended the hearing with an advocate who made a submission on his behalf. The worker answered questions posed by his representative and the panel. The worker also called two witnesses in support of his claim.
The worker described the June 8, 2004 accident and resulting symptoms. He advised that since the 2004 injury he has started using a cane. Regarding his current status he advised that his main problem is his back. He advised that it causes pain in his neck and shoulder. It also causes pain and numbness in the right leg. He also provided information on medical treatments he has received.
One witness, an acquaintance, advised that she attended certain medical examinations with the worker. She also provided a description of the worker before and after the injury.
The worker's wife also provided evidence at the hearing. She advised that their quality of life has totally changed since the workplace accident. She described her husband as a workaholic before the accident and stated that now he is not able to perform physical tasks.
The worker's representative noted that the treating physician has consistently reported that the worker is incapable of returning to work.
In a written submission provided after the oral hearing, the representative notes that the x-ray of October 2005 demonstrates that the worker has suffered a compression fracture at L1. He submitted that the overwhelming objective medical evidence supports a decision that the worker has not recovered from the 2004 injury.
Employer's Position
The employer noted the reports of pain that the worker is suffering. He expressed concern about the medical management of the claim and the amount of medication that the worker has been prescribed. He submitted that the worker needs help and needs to find a different line of work.
The employer noted that when the worker returned to work after his 2002 injury he was as good as he was before the 2002 injury.
Analysis
The issue before the panel is whether the worker has recovered from the effects of the June 8, 2004 compensable injury. For the appeal to succeed the panel must find that the worker's ongoing symptoms are caused by the 2004 injury. The panel was not able to make this finding.
The panel finds, on a balance of probabilities, that the worker has recovered from the June 8, 2004 injury and that the worker's ongoing symptoms are not related to this injury. In arriving at this conclusion, the panel places significant weight upon the opinion of the independent medical examiner set out in a report dated June 15, 2006.
The panel notes the independent medical examiner's observation that examination was at times difficult because of what seemed to be an exaggerated response to pain by the worker. The examiner commented that
The panel also notes the opinion of the neurosurgeon who examined the worker on October 12, 2005. The neurosurgeon comments:"In conclusion this gentleman has most likely lower mechanical back pain. Clinically I failed to establish the presence of any radicular pain.
Whether the current pain is a result of his workplace injury in June 2004 is difficult to establish…
It therefore seems that [worker's name] has some mechanical lower back pain. He has had different traumas or injuries to his lower back which are work related. Radiologically there is no evidence of recent fracture. The minor compression of T11 and L1 seem to be long-standing in nature. The bone scan done in 2003 failed to demonstrate any acute fractures.
In any case, enough time had elapsed for bones to heal as well as for his soft tissue injuries to heal.
The severity of this gentleman's pain does not seem to correlate well with anatomical injuries…
His current symptoms are difficult to explain based upon the previous injuries that he has sustained."
"I am having the x-ray repeated today, but would doubt whether we will see anything significant and really there is no clinical correlation. I do not imagine any further follow-up will be needed. I really have no suggestions about the pain in this man, which seems really out of proportion to what happened to him to what the findings on x-ray are."Given the panel's findings, the appeal is denied.
Panel Members
A. Scramstad, Presiding OfficerR. Koslowsky, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 11th day of August, 2006