Decision #05/01 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on November 23, 2000, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on November 23, 2000.
Issue
Whether or not responsibility should be accepted for the back surgery of January 20, 2000 including any associated time loss, treatment or medical expenses.
Decision
That responsibility should not be accepted for the back surgery of January 20, 2000 including any associated time loss, treatment or medical expenses.
Background
During the course of his employment as a construction labourer on July 24, 1998, the claimant lost his balance and fell approximately 12 feet and landed on a metal beam striking his back and rib area.
A Doctor’s First Report dated July 28, 1998 (date of first treatment was July 24, 1998) noted tenderness in the lower back. The diagnosis was fractures of the left ribs numbered 10, 11 and 12.
A second Doctor’s First Report dated July 30, 1998, noted tenderness in the cervical and mid thoracic muscles, soft tissue swelling on the dorsum of the left foot.
The diagnosis rendered was rib fractures, back, neck, right knee and left wrist strains. The claimant was prescribed physiotherapy treatments together with stabilization and strengthening exercises.
In October 1998, primary adjudication requested that a WCB medical advisor review the case. The adjudicator noted that the claimant had advised his boss that he had been golfing all summer. The medical advisor was asked to comment on whether there were any pre-existing conditions that were significantly prolonging the claimant’s recovery. The medical advisor responded as follows: “No. Opinion: We need to get the CT scan report prior to comment. All other areas would not be disabling in my view. If he can ‘golfing all summer’ he can take reasonable stresses though the spine and can walk.”
On November 24, 1998, a Workers Compensation Board (WCB) medical advisor assessed the claimant. The medical advisor stated in part, that the claimant had a mild case of mechanical back pain which was of questionable impairment. He did not feel that the claimant would be limited from work as a consequence of his thoracic cage or his back condition.
In a progress report dated December 9, 1998, the treating physician indicated that the claimant continued to have pain and a “giving out” sensation in his lower back. He further indicated “discussed report WCB – no further active tx (treatment) - to continue back stabilization program”.
On May 21, 1999, a CT scan of the lumbar spine revealed the following: “At L5-S1, there are bilateral pars interarticularis defects with Grade 1 spondylolisthesis. Bilateral laminar defects are thought to be post surgical. There is diffuse disc prominence – slightly more to the left with potential compromise of the existing left L5 root. Clinical correlation for a left L5 radiculopathy is required. No central stenosis or other abnormality is identified.”
In a report prepared by an orthopaedic surgeon and forwarded to the attending physician dated June 2, 1999, the surgeon noted that the claimant reported no back problems prior to his work injury. The surgeon made reference to the CT scan report and commented that spondylolisthesis was often a pre-existing and asymptomatic condition. There was a reference to post surgical appearance at L5-S1, but the claimant had not had surgery. The surgeon commented that the surgical remedy for failed conservative treatment was fusion.
On June 8, 1999, a medical advisor was asked to review the updated orthopaedic report and CT scan and to comment on whether there was a cause and effect relationship between the compensable injury and the claimant’s ongoing signs and symptoms. The medical advisor responded that if the claimant could golf all summer then he did not think the L5-S1 grade 1 spondylolisthesis was very disabling.
On July 16, 1999, the orthopaedic surgeon indicated that the claimant agreed to proceed with an L4-S1 fusion commencing at L4 because of the presumed degenerative change and disc bulging at this level.
In a memo dated August 10, 1999, a WCB medical advisor reviewed the case and noted that the fusion was for a pre-existing condition and that no back pathology was resultant from the compensable injury. There was no mention of the claimant’s back on file until the call in and the findings at that time were minimal. The medical advisor indicated that he would not authorize any surgery for the back as a financial responsibility of the WCB. He also could not identify any findings on a clinical basis to justify the procedure. On August 11, 1999, primary adjudication wrote to the claimant’s legal counsel to advise him of the WCB’s decision not to accept financial responsibility for the surgery.
On November 22, 1999, legal counsel for the claimant submitted additional information obtained from the treating orthopaedic surgeon dated November 13, 1999. The specialist offered the opinion that the claimant’s current back problems were due primarily to the fall suffered in July of 1998 and that as a result of the fall, surgery was required. The file was referred to a WCB medical advisor for comment on November 24, 1999.
On December 21, 1999, primary adjudication wrote to the claimant’s solicitor to advise him of the medical advisor’s comments. Primary adjudication stated that the medical advisor indicated there was no change in his original decision that the proposed surgery was related to a condition that pre-existed the compensable injury. The medical advisor further noted that the orthopaedic surgeon did not know the source of the backache nor did he indicate the spondylolisthesis had resulted form the July 24, 1998 compensable injury.
On January 20, 2000, the claimant underwent the following surgery: “L5-S1 posterolateral fusion with left iliac crest bone graft.” On May 2, 2000, the orthopaedic surgeon stated that the postoperative progress to this time had been satisfactory.
On April 12, 2000, the solicitor appealed the WCB’s decision that the claimant’s back surgery was not related to the compensable injury of July 24, 1998. Prior to rendering a decision, Review Office obtained the opinion of a WCB orthopaedic consultant on May 16, 2000.
On May 19, 2000, Review Office determined that no responsibility would be accepted for the claimant’s January 20, 2000 back surgery and that no responsibility would be accepted for any associated time loss, treatment or medical expenses as a result of the surgical procedure. Review Office found that the file evidence did not support a causal relationship between the claimant’s spondylolisthesis for which the claimant underwent surgery on January 20, 2000 to the workplace accident of July 24, 1998. Review Office was of the view that the spondylolisthesis pre-existed the workplace accident of July 1998 and had not been enhanced by the event.
On August 2, 2000, the claimant’s solicitor appealed Review Office’s decision and an oral hearing was arranged.
Reasons
As the background notes indicate, on July 24th, 1998 the claimant fell approximately seven feet onto a steel girder. He suffered fractures to his left 10th, 11th and 12th ribs as well as a strain to his back, neck, right knee and left wrist. X-rays of the lumbar spine taken on July 24th, 1998 revealed as follows: “Normal alignment is maintained. A bone, soft tissue, disc or articular abnormality is not observed. The S1 and hip joints are intact.” Initial indications were that the claimant would require at least four weeks off of work as a result of his broken ribs. The treating physician made arrangements for the claimant to be examined by an orthopaedic surgeon because of a mass that had developed in the claimant’s left foot. The surgeon recommended on October 13th, 1998 that this mass be surgically excised.
Prior to its approving this proposed surgery, the WCB decided to have the claimant examined by one of its medical advisors. Findings on examination with respect to the claimant’s back included: “Range of movement of his lumbar spine and thoracic spine was unremarkable. Palpation of his back revealed tenderness at the lumbosacral junction and the left SI and sacral regions. Minimal evidence of spasm was noted in the back. Straight leg raising/femoral nerve stretch were unremarkable.” The medical advisor concluded in part that the claimant had a mild case of mechanical back pain, which was of questionable impairment and that this condition should not limit the claimant from working. Excision of a ganglion on the claimant’s left foot was eventually approved by the WCB.
The claimant continued to experience shoulder and lower back pain despite what we perceived to be a lack of continuity of symptoms since the date of the compensable injury. This ongoing pain prompted the treating orthopaedic specialist to recommend that an MRI of the thoracolumbar spine be conducted. On May 21st, 1999 the claimant underwent a CT scan of his lumbar spine. At the L5-S1 level, the radiologist recorded that there were bilateral pars interarticularis defects with grade 1 spondylolisthesis. In addition, there was at the L4-5 level mild central disc bulging together with mild compression of the anterior surface of the thecal sac, however, no nerve root compression or spinal stenosis was identified.
After consultation with the claimant, the orthopaedic surgeon recommended an L4-S1 fusion because of “the presumed degenerative change and disc bulging at that level as well.” The claimant was made fully aware of the risks and benefits associated with this surgical procedure. In the opinion of the surgeon, “…even in the absence of the workplace injury, I would consider Mr. [the claimant] more at risk for back pain, as someone without spondylolisthesis, or some of the other factors eluded to above. However, I doubt he would be in the situation he is in now in the absence of that particular workplace injury. It is my opinion, although not provable one way or the other, that without the presence of the July 24, 1998 workplace injury, he would not be at this time scheduled for L4-S1 posterior lumbar fusion …”.
A formal request was presented to the WCB for approval of the proposed surgery. Authorization for surgery was not granted by the WCB. Medical Services concluded that the claimant’s spondylolisthesis was probably a pre-existing condition as there was “no suggestion the claimant had sustained a traumatic spondylolisthesis at the time of the compensable injury.”
We note that the claimant has had a prior history of back pain. WCB records indicate that the claimant sustained an injury to his lower back in September of 1996. The injury was diagnosed as a strain/sprain of the lumbosacral region and the recommended course of treatment included chiropractic spinal adjustments. X-rays taken on September 13th, 1996 identified a grade 1 spondylolithesis of L5.
The operative report of January 20th, 2000 records a post-operative diagnosis of L5-S1 isthmic grade 1 spondylolisthesis. We find this diagnosis to be significant for two reasons: firstly, it confirms the pre-existence of grade 1 spondylolithesis, which was initially detected by the September 13th, 1996 x-rays and secondly, it further confirms that the spondylolithesis has not progressed or become enhanced since 1996. Also of significance is the WCB’s orthopaedic consultant’s opinion contained in a memorandum to file dated May 16th, 2000, in which he states:
“In my opinion, this one injury to the pre-existing problem does not equate with the subsequent need for an operation and segmental spinal fusion that was carried out on January 20, 2000. In my opinion, it has not been substantiated that the pre-existing condition was enhanced by the CI, subsequently necessitating a segmental spinal fusion at the L5-S1 level. The comments that Dr. [name], attending orthopaedic surgeon, makes in his medical report of November 13, 1999, are all pertinent, particularly item #3 in which he notes the claimant had a back at risk which might have necessitated the subsequent need for a spinal fusion had the CI not even occurred.”
We find that the claimant’s diagnosis with respect to his back injury consisted of a mild case of mechanical back pain. Based on the weight of evidence, we conclude that this condition had, on a balance of probabilities, resolved itself very shortly after the compensable accident. We heard oral evidence that the claimant played golf and went water skiing approximately six weeks following his injury. These activities are not consistent with a painfully bad back. Again as previously mentioned, there is a definite lack of continuity of any serious back difficulties until several months after the claimant’s 1998 accident.
The WCB’s Board of Directors has instituted a policy (44.10.20.10) that deals specifically with pre-existing conditions. The policy states in part as follows:
“Where a worker has:
1. recovered from the workplace accident to the point that it is no longer contributing , to a material degree, to a loss of earning capacity, and,
2. the pre-existing condition has not been enhanced as a result of an accident arising out of and in the course of the employment, and
3. the pre-existing condition is not a compensable condition,
the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid."
The CT scan of May 21st, 1999 reports a 1st degree L5 spondylolisthesis due to isthmus defects. There is no suggestion that the claimant sustained a traumatic spondylolisthesis at the time of his compensable injury. The preponderance of evidence does not support the claimant’s contention that his pre-existing condition was enhanced by the fall. We find that responsibility should not be accepted for the back surgery of January 20th, 2000. In accordance with the above referenced policy, the WCB is not responsible for the payment of any associated time loss, treatment and medical expenses.
Panel Members
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 5th day of January, 2001