Decision #04/06 - Type: Workers Compensation

Preamble

A non-oral file review was held on November 23, 2005, at the worker’s request.

Issue

Whether or not responsibility should be accepted for the worker’s current back complaints or for the proposed surgery to her back.

Decision

That no responsibility should be accepted for the worker’s current back complaints or for the proposed surgery to her back.

Decision: Unanimous

Background

On July 6, 2004, the worker injured her lower back region during the course of her employment duties as a housekeeping aide. The worker described the accident as follows:

“I was lifting heavy laundry bag full of dirty laundry onto a cart and I felt a pain in my back. The laundry bag weighed about 60 pounds. I have to lift the bag above my head to put in the cart.”

In a report dated June 23, 2004, the family physician indicated that the worker complained about pain in her lower back for the last three months. The pain went down into her right hip area and down on the lateral aspect of her right upper leg. She also complained of numbness in the medial side of her right lower leg. X-rays taken the same day revealed five lumbar vertebrae with a grade ¼ spondylolisthesis of L4 on L5 secondary to spondylolysis at L4. There was also some sclerosis along the iliac side of the right SI joint which may be considered degenerative in nature.

In a letter to the family physician dated July 13, 2004, an orthopaedic specialist reported that the worker had severe radiculopathy of the right leg with a grade 2 spondylolisthesis of L4 and 5 and total loss of disc height at the same level. Strict bed rest and medication was prescribed to the worker. An MRI and decompression surgery was suggested if the worker’s condition failed to improve.

On July 27, 2004, the orthopaedic specialist stated that the worker had made a “remarkable recovery” from her L4-5 disc herniation. He stated that the worker still had pain affecting mostly her right leg along with L5 nerve root pain but she claimed that she was 80% improved compared to the previous examination. Clinical evaluation showed some weakness over the ankle reflex but was still present on the right. Motor power was recovered somewhat but there was some sensory disturbance at the L5 dermatome.

On July 29, 2004, a WCB adjudicator contacted the worker to gather additional information about her work history, current symptoms, etc. On July 30, 2004, the adjudicator advised the worker that since she had a pre-existing condition, her claim was being accepted as a low back strain which meant that the WCB was only responsible of the recovery period for a back sprain and not for all her back difficulties. Wage loss benefits would be paid from July 8, 2004 to July 31, 2004 inclusive. On August 1, 2004 the worker returned to work.

On November 22, 2004, the worker contacted the WCB and stated she experienced a recurrence of symptoms and had a recent cortisone shot.

In a memo dated December 13, 2004, a WCB adjudicator outlined details of a conversation she had had with the worker regarding her continuation of lower back pain. The worker indicated that her condition improved after she originally injured herself but she still had pain in her lower back and right leg. She said that the cortisone shot did not help with the pain. The worker stated that she worked for a different employer as a housekeeper and there was not as much lifting or bending involved. She stated that her work duties were not contributing to her pain.

In a report dated January 25, 2005, the orthopaedic specialist stated, in part:

“Ms. [the worker’s] symptoms are ongoing since the incident at work in July last year. I believe this is truly a case of a work related injury with an underlying asymptomatic spondylolisthesis. There is no doubt that she had never been off work prior to this time and never had back complaints prior to this time. On the charts that are available at the [name] Clinic, the patient had been seen for back pain earlier in the year, since April of 2004. This followed lifting of heavy bags at the laundry and that was the first mention made of a back injury, in March 2004. See Dr. [family physician’s] noted dated 03/03/04. It is definitely my opinion that this patient had ongoing pain since March of last which is the cause of her present complaint.”

…This patient will probably require surgery.”

An MRI examination of the lumbar spine dated February 24, 2005 revealed the following impression: “Severe disc narrowing and spondylolisthesis at L4-5 with narrowing of the right-sided foramen at L4-5 with presumed nerve root compression of the right L4 root in the right lateral foramen.”

On March 7, 2005, the treating orthopaedic surgeon advised the family physician that the worker would benefit from an L4-5 decompression with a discectomy and fusion. The specialist requested the WCB’s approval to continue with the proposed surgery.

On March 15, 2005, the case was forwarded to the WCB’s healthcare branch for an opinion concerning whether or not the worker’s current diagnosis and the request of surgery was related to the mechanism of injury. In a response dated March 16, 2005, the medical advisor stated:

“This claimant has pre-x [pre-existing] spondylolisthesis. The AP [attending physician] states in initial report that she had been complaining of back pain for 3 months predating the C.I. [compensable injury]. There is no reason in my opinion that this should be a financial responsibility of WCB given the info on file.”

In a decision dated April 8, 2005, the WCB case manager advised the worker that he was unable to link the current diagnosis of L4/5 disc protrusion with spondylolisthesis to her original July 6, 2004 back strain claim and therefore he could not accept responsibility for her current symptoms or pending surgery. The case manager outlined his position that the worker had recovered from her original back strain and that her current diagnosis was not related to her original claim. He noted that the worker suffered from low back pain prior to her injury of July 6, 2004. In May 2005, the worker appealed the decision and the case was forwarded to Review Office.

On July 14, 2005, Review Office confirmed that the worker had recovered from the effects of her July 6, 2004 injury and that no responsibility would be accepted for her current back complaints or for the proposed back surgery. Review Office based its decision on the following factors:

  • there was no evidence to support that the worker’s pre-existing condition was enhanced by the workplace event;

  • the treating orthopaedic surgeon indicated that the worker made a ‘remarkable recovery’ in his report of July 27, 2004;

  • the worker had significant problems with her back immediately before the work event;

  • there was no claim for a back injury before July 6, 2004 that was accepted by the WCB;

  • the July 13, 2004 orthopaedic surgeon report which indicated that the worker had been aware of previous discomfort some time ago and had a severe peak in her pain over three weeks. He reported there was no specific injury present;

  • the worker returned to work on August 1, 2004 which was evidence of improvement from the physical effects of the July 6, 2004 compensable injury.

On August 31, 2005, the worker appealed Review Office’s decision of July 14, 2005 and a non-oral file review was arranged.

Reasons

The worker in this case is appealing a WCB decision that her current back complaints and a proposed surgery are not related to her July 2004 work injury. This case was dealt with as a non-oral review, and the worker provided the panel with a written argument as to why she should be entitled to ongoing benefits.

For the Panel to accept the worker’s appeal, we would have to find, on a balance of probabilities, that her recurrence of back pain in November 2004 and her ongoing and current medical conditions are causally related to her July 2004 work injury. After a thorough review of the worker’s file, we were unable to come to this conclusion. Our reasons follow.

Relevant Policy:

From the medical evidence on the file and in particular an MRI dated February 24, 2005, it is apparent that the worker had a severe underlying pre-existing back condition, although she had not missed time from work prior to the July 6, 2004 injury.

WCB Policy 44.10.20.10 deals with how claims should be adjudicated where there is a pre-existing condition as well as a work injury in the area of the pre-existing condition. The policy states, in part:

A. POLICY

1. WAGE LOSS ELIGIBILITY

(a) Where a worker’s loss of earning capacity is caused in part by a compensable accident and in part by a non compensable pre-existing condition, or the relationship between them, the Worker’s Compensation Board will accept responsibility for the full injurious result of the accident.

(b) 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.

Evidence and findings:

As noted in the background, the worker had injured her lower back while lifting a heavy laundry bag on July 6, 2004. Two weeks earlier, on June 23, 2004, she had already been reporting low back pain of three months duration to her attending physician. X-rays taken at that time noted the presence of spondylolisthesis in her lower back and other degenerative findings. These degenerative findings were later confirmed on an MRI dated February 24, 2005, which noted “severe disc narrowing and spondylolisthesis.” The Panel finds that these conditions would not have arisen from the specific lifting incident at work and would clearly have been in play prior to the July 2004 work incident. As such, the worker had a pre-existing medical condition.

The worker, however, has a back at risk, and one week after the incident, on July 13, 2004, an orthopaedic surgeon reports findings of a severe radiculopathy of the right leg and a treatment regimen involving strict bed rest and medication. In a follow-up examination on July 27, 2004, the specialist noted a “remarkable recovery” from what he described as a L4-5 disc herniation. The worker returned to work on August 1, 2004.

On November 22, 2004, the worker reported a recurrence of her back problems, which ultimately led to a recommendation by her orthopaedic surgeon that she undergo a L4-5 decompression with a discectomy and fusion. The surgeon also provided a letter of support for the work-relatedness of this ongoing condition, noting that “there is no doubt that she had never been off work prior to this time and never had back complaints prior to this time.” A WCB medical advisor in March 2005 reviewed the file and suggests that the worker had prior complaints of low back pain, and that the surgery was related to her pre-existing back problems and not to the July 2004 work injury.

Analysis:

Our review of the file leads to our making the following findings of fact:

  • The diagnostic tests (x-ray and MRI) clearly indicate that the worker had a significant pre-existing back condition prior to July 2004. She had, in fact, been complaining of lower back difficulties to her attending physician prior to the work place accident.
  • On July 6, 2004, the worker lifted a heavy bag of laundry at work. This aggravated her pre-existing back condition. Although earlier WCB decisions have referred to this aggravation as a “back strain,” we note the medical findings of severe radiculopathy into the right leg after this incident, and we prefer the orthopaedic surgeon’s diagnosis of a L4-5 disc herniation.
  • On July 27, 2004, the surgeon noted a “remarkable recovery” from that disc herniation, and in fact the worker was able to return to work within days of that examination. This leads us to a finding that the aggravation of the pre-existing condition – the disc herniation – had resolved by that date, and from that point forward, the worker had returned to her baseline with respect to her pre-existing condition.
  • The worker continued with her work for almost four months, noting she continued to have some lower back pain, until her symptoms increased in November 2004. We note that the MRI examination of February 24, 2005 relates her back problems specifically to severe disc narrowing and spondylolisthesis at L4-5. We also note the absence of any reported work incident in November 2004 when the worker reported increased symptoms. This leads us to conclude, on a balance of probabilities, that the worker’s problems in November 2004 and beyond are related to her pre-existing back conditions, and not to a workplace incident in November 2004 or to the July 2004 disc herniation, which had resolved within the following three weeks.
  • Although the orthopaedic surgeon suggests work-relatedness based on a history that the worker was asymptomatic prior to the workplace incident, we note that the worker’s attending physician had reported back pain for the preceding three months. As such, the worker’s pre-existing back condition was clearly causing continuing and increasing difficulties for the worker, and given the severity of the condition, it would be expected to lead to the types of medical intervention suggested by the surgeon. The Panel’s findings in this regard are consistent with the WCB medical advisor’s comments dated March 16, 2005.

Based on these findings and the provisions of WCB Policy 44.10.20.10, the Panel concludes that the worker had on a balance of probabilities recovered from the July 6, 2004 aggravation of her pre-existing condition by the end that month, and that her ongoing medical difficulties are solely related to her pre-existing non-compensable back condition. Accordingly, there is no basis to accept responsibility for the worker’s current back problems or for the proposed surgery. The worker’s appeal is therefore denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 9th day of January, 2006

Back