Decision #78/04 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on January 8, 2004, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on January 8, 2004 and again on April 15, 2004.Issue
Whether or not responsibility should be accepted for the worker’s time loss from work commencing November 15, 2002.Decision
That responsibility should be accepted for the worker’s time loss from work commencing November 15, 2002.Decision: Unanimous
Background
During the course of his employment as a heavy equipment operator on January 16, 2002, the claimant slipped on hard packed snow and while regaining his balance, jarred his lower back.
A report was received from an orthopaedic specialist dated January 24, 2002. He noted that the claimant was seen at a local hospital on January 17th with acute lower back pain and sciatica radiating into the left lower limb. A CT scan examination revealed a significant L4-5 disc prolapse on the left. The claim was accepted by the Workers Compensation Board (WCB) and wage loss benefits were paid accordingly.
Up-dated medical reports were received from the treating orthopaedic specialist and the claimant’s family physician. The claimant underwent various laboratory tests which included a bone scan, a CT scan of the lumbosacral spine and an MRI examination. The claimant was also assessed by a WCB orthopaedic consultant and received physiotherapy treatments.
In a progress report dated August 30, 2002, it was noted that the claimant’s subjective complaints of low back pain radiated into his left leg. The physician confirmed that the claimant’s recovery had been satisfactory and that he was scheduled to return to work on September 3, 2002. The claimant received wage loss benefits from the WCB up to September 3, 2002 inclusive and final.
On November 14, 2002, the claimant notified his case manager that he was bothered by back pain as well as left leg difficulties. There was no new accident. On November 19, 2002, the claimant stated that he returned to work on November 18th but only lasted a few hours.
On November 28, 2002, a WCB orthopaedic consultant discussed the case with a WCB case manager and the following comments were made:
“…Recent medical reports noted. There have been prior claims going back to 1989 related to his back. I feel his ongoing symptoms are related to degenerative changes. These may be due to his prior injuries.
Because of these degenerative changes exacerbations in future are likely.
The MRI in Sep/02 showed degenerative changes (narrowing and desiccation). I do not think there is any significance to the ‘evidence of a shallow bulge’ at L3-4 or the ‘very tiny disc herniation’ at L5-S1. I would suggest permanent work restrictions.”
In a letter dated December 16, 2002, primary adjudication wrote to the claimant advising him that the WCB was unable to accept responsibility for his ongoing back symptoms. Following review of the claimant’s 3 previous back claims together with the recent medical information, primary adjudication concluded that the claimant likely aggravated his pre-existing condition in his back at the time of his January 2002 injury. It felt that the claimant had now recovered from his 2002 work injury and that, on a balance of probabilities, his present back symptoms were more related to his pre-existing condition.
On February 18, 2003, the claimant was advised by his case manager that he did not qualify for benefits and services under the WCB’s preventive vocational rehabilitation plan as it was not considered to be cost effective.
In a submission dated March 10, 2003, an advocate for the claimant outlined his position that the claimant’s pre-existing degenerative condition was a consequence of repeated back injuries and that he incurred an injury on January 16, 2002 which further enhanced that pre-existing condition. Therefore, the claimant’s ongoing back problems should be considered compensable. The advocate further contended that the claimant suffered a recurrence of his compensable injury on November 15, 2002 and that he was entitled to going wage loss benefits retroactive to that date.
In a letter to the advocate dated April 25, 2003, a WCB case manager commented that there was no evidence to conclude on any of the claimant’s files that his pre-existing condition was caused or enhanced by those incidents. “Given that the pre-existing condition was evident on x-rays in 1989, and therefore was present prior to his workplace injury and the diagnosis of his injuries have primarily been strains, it is the opinion of Rehabilitation and Compensation Services that on a balance of probabilities, his pre-existing degenerative condition was not a consequence of his prior injuries or enhanced by his January 2002 workplace injury. As a result, I am unable to change my opinion of December 16, 2002.”
In a decision by Review Office dated August 22, 2003, it was determined that no responsibility could be accepted for the worker’s time loss from work commencing November 15, 2002. Review Office noted that an opinion was solicited from a WCB orthopaedic consultant, who felt that the worker’s injuries in 1989 and 1992 were muscular in origin and would have played no significant role in the development of multi-level degenerative changes. The 1996 injury, which consisted of a direct blow to the lower back, showed no evidence of any disc herniation or nerve root compression nor was there any radiation of pain to the legs. As well, the treating orthopaedic surgeon commented on September 27, 1996 that there had been no significant change from the x-rays taken of the lumbosacral spine in 1992.
Regarding the accident of January 16, 2002, Review Office noted that the claimant did not experience any symptomatology until the next day. A CT scan suggested a disc herniation, however, a later MRI confirmed no evidence of any conclusive disc herniation and the claimant’s neurological status was reported as being normal when examined on January 17, 2002.
Based on the above evidence, Review Office was satisfied that the claimant’s multi-level degenerative disc disease was neither caused by any of his compensable back injuries nor was this degenerative process enhanced or accelerated by the injury he sustained on January 16, 2002. In October 2003, the claimant’s advocate disagreed with Review Office’s conclusions and an oral hearing was convened.
On January 8, 2004, an oral hearing took place at the Appeal Commission. Following the hearing and discussion of the case, the Appeal Panel requested additional information be obtained from the claimant’s treating physician. A report from this physician was later received dated March 30, 2004 and was forwarded to the interested parties for comment. On April 15, 2004, the Panel met to render its final decision with respect to the issue under appeal.
Reasons
As the background notes indicate, the claimant sustained a compensable injury when he slipped on an ice patch and jarred his back. A WCB orthopaedic consultant examined the claimant on March 1, 2002 and recorded the following comments in his examination notes:
“The x-rays and CT scans show degenerative changes in the lumbosacral spine and, to some extent, the left hip. I don’t think the symptoms are coming from the hip. I think, up until January, his symptoms were consistent with degenerative changes in the lumbosacral spine. He probably aggravated this at the time of his injury. His present symptoms, I think are either due to the degenerative changes themselves or due to a radiculopathy. The radiculopathy would be partly due to the facet hypertrophy, osteophytes on the discs, and possibly a disc protrusion. Because of the degenerative changes in the spine, I feel he will continue to have problems.” (Emphasis ours)
The claimant was paid wage loss benefits until he returned to work with restrictions on September 3, 2002. Unfortunately, the claimant’s low back symptoms increased over the next several weeks and by November 15, 2002 he was forced to stop working. He attempted another return to work on November 19, but to no avail as the attempt lasted only a few hours. The claimant was then subsequently examined by his treating physician as well as the employer’s physician, who both recommended that the claimant should not continue working.
We note according to the claimant’s description of his job duties that he was required to drive heavy equipment over very uneven and rough terrain, which resulted in considerable bouncing and jarring. His evidence was that his back pain increased significantly while on the job.
Q. Sorry, I got the impression you had started to take your holidays on November 19th. You took your holidays –
A. No, I had two weeks off in October. I took two weeks off in October and rested myself. You see I wasn’t solid. When I went back to work, I didn’t solidly work from September to November, I had holidays in between there.
Q. Okay
A. And that sort of rested myself and everything. But then when I was bouncing around that old ramp and I didn’t have nothing, and what happened was in November it got so bad I said – I couldn’t even hold my foot on the brake, and I said to myself, and if you’ve ever seen one of those Fantuzzis, it’s got to the situation where, what am I doing here.
Q. What is a Fantuzzi exactly?
A. It’s a top lifter, it lifts up those 53 foot containers and trailers, takes them off the cars.
Q. The containers?
A. Yes, you know, those boxcars, those machines, I drive one. And I got to the situation where I looked at it and said to myself, If I kill somebody, where am I, because I can’t even stop this machine”, you know what I mean, I can’t stop it, I can’t do nothing, my back is killing me, it’s swollen up again. That’s when I phoned Compensation. You see at the beginning [case manager] said to me, when I went back to work she told me, she said to me, “Okay, you should be healed, go back to work. And if it hurts again, you can – we’ll put you back on compensation.” So I said, “Okay, I’ll try, because I like my job, I’ll go back to work. But if it hurts again, you know if I have any problems -”. She says, “no”. So I turned around and I says, “Okay, I’ll go back to work, and she says, “Otherwise we’re cutting you off and you’re going to have to appeal it.” This was [case manager], so I says, “Okay, I’ll go back in September.” She wanted me to go back in September. She told me she was going to cut me off and I would have to appeal it. Then I turned around and I went to – in November it got bad and I turned around and went to my doctor and I went to also see (sic) a doctor and he says, “It’s swollen up again.”
Following his stopping work in November, the claimant underwent a CT scan of his lumbar spine. Although there was marked improvement with respect to a left posterior lateral disc protrusion at the L4-5 level, the scan revealed a persisting small left posterior lateral disc protrusion at L4-5. An orthopaedic specialist examined the claimant on or about June 25, 2003 and concluded in his consultation report as follows: “I don’t seen (sic) any evidence of specific nerve root entrapment or nerve root malfunction. Undoubtedly there is wear in the spine that has been aggravated by his work injury.”
The claimant testified that after his stopping work in November (as advised by both his own doctor and the employer’s) he went to physiotherapy on his own accord for two or three months. The claimant continues with his exercises and stretches at home and at work and now he is pain free. He returned to his full-time pre-accident duties in September 2003.
We find based on the weight of evidence that the claimant had not, on a balance of probabilities, recovered to his pre-accident state when he returned to work in September 2002. We further find that the claimant in all probability temporarily re-aggravated his pre-existing back condition and injury in October/November 2002. We note that this condition has fully resolved and the claimant has returned to his pre-accident state. Finally, responsibility should be accepted for the worker’s time loss from work commencing November 15, 2002. Accordingly, the claimant’s appeal is hereby allowed.
Panel Members
R. W. MacNeil, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 4th day of June, 2004