Decision #126/01 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on October 3, 2001, at the employer’s request. The Panel discussed this appeal on October 3, 2001.
Issue
Whether or not the worker’s ongoing low back complaints continue to be related to the accident sustained at work on April 14, 1999; and
Whether or not the work restrictions identified are considered to be permanent.
Decision
That the worker’s ongoing low back complaints continue to be related to the accident sustained at work on April 14, 1999; and
That the work restrictions identified are considered to be permanent.
Background
On April 21, 1999, the claimant filed an application for compensation benefits in relation to left hip, lower back and right ankle injuries which occurred on April 14, 1999 while employed as a Refuse Helper/Equipment Operator III. The claimant described the accident as follows:
“Lost my footing off step rail, when getting out of automated recycling truck, twisting my right ankle falling backwards and striking against another truck parked beside it, injuring my left side hip area and lower back area.”
A Doctor’s First Report dated April 19, 1999, revealed that the claimant first attended for treatment on April 19, 1999. The diagnosis rendered was a right ankle strain and a back injury - musculoligamentous in origin. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on April 20, 1999.
X-rays of the lumbosacral spine taken on May 17, 1999 revealed degenerative changes with small anterolateral osteophytes. The intervertebral disc spaces were satisfactorily maintained. There was rather marked degenerative changes noted in the distal dorsal spine. X-rays of the pelvis and sacroiliac joints demonstrated no abnormalities.
On April 28, 1999, the claimant commenced physiotherapy treatments for his lower back. On May 26, 1999, the physiotherapist requested extended therapy for the claimant as he was exhibiting discogenic pain. On June 30, 1999, the physiotherapist reported that the claimant was making slow progress to date but recovery was anticipated.
A WCB medical advisor examined the claimant on June 28, 1999. The medical advisor summarized that the examination showed “a claimant who has evidence of muscle injury and myosacroiliac dysfunction over the left gluteal area. The injury includes the left sacroiliac and musculature of the left paraspinals and gluteal muscles. This also includes the left piriformis muscle. There is minor evidence of injury on the right side. The imaging studies showed mild degree of degenerative disease in this claimant’s lumbar spine. There is no evidence of pelvis degenerative disease.” The medical advisor outlined restrictions for the claimant and commented that he would discuss with the treating physician the possibility of introducing acupuncture to the injured musculature.
The claimant was assessed by a specialist regarding acupuncture treatments on August 23, 1999. The specialist’s examination findings were as follows: “He displayed a reasonable range of affect. He was able to heel and toe walk and do a full squat without difficulty. Reflexes were symmetrical. There was no dermotomal sensory loss. Straight leg raising was negative. Abdominal exam was normal. Range of motion of the lumbar spine was mildly restricted in flexion. On palpation, there was some shortening of the lumbar paraspinal musculature.” The specialist assessed the claimant with sleep disturbance and muscular back pain. A treatment plan was outlined which included dry needling.
In a follow-up report dated September 23, 1999, the above specialist noted that there was not much change in the claimant’s condition. The claimant’s sleep was still very disturbed and he complained of some shooting pains into the left leg. Neurological exam was normal and range of motion of the lumbar spine was quite restricted. The claimant was to undergo a CT scan to rule out a central disc.
A CT scan report of the lumbosacral spine dated September 29, 1999 noted the following findings:
“The L3-L4 level appears unremarkable. At the L4-L5 level, there is a small left posterolateral disc herniation. The disc material contacts the left L5 nerve root prior to its lateral recess. I cannot exclude mild compression or irritation of the left L5 nerve root in this location. Correlate clinically for potential left L5 radiculopathy. There is slight flattening of the anterior aspect of the thecal sac without significant central spinal stenosis. At the L5-S1 level, there is some left posterolateral endplate degenerative spurring without evidence of disc herniation, spinal stenosis, or nerve root compression.”
In a telephone conversation with the treating specialist on October 20, 1999, a WCB medical advisor recorded that the claimant was referred to a physical medicine and rehabilitation specialist (physiatrist) for an epidural as the claimant had some suspicious bulging noted on the CT scan.
In a report dated December 15, 1999, the physiatrist reported his examination findings as “…spinal flexion was limited. Strength was normal throughout all major muscle groups of both lower limbs. There was no sensory deficit to pin in the L3-S1 dermatomal distributions. Knee, medial hamstring and ankle reflexes were normal and symmetrical. Left straight leg raise appeared to be positive resulting in proximal pain. Right straight leg raise and femoral stretch testing were negative. Soft tissue tenderness was not prominent. There was some discomfort with segmental examination over the lumbar spine.”
The physiatrist commented that the claimant had a lumbosacral discopathy documented on CT scan. He had radicular symptoms and subtle findings of active nerve root irritation. There were no definite findings of neurologic impairment.
In January 2000, the claimant was seen at a local hospital for an epidural cortisosteroid injection. The epidural localization was considered unsuccessful.
In a March 25, 2000 report, the physiatrist indicated the following under the heading prognosis and treatment plan:
“My prognosis of Mr. [the claimant’s] full recovery is somewhat guarded. He has not had a significant response to the treatments provided. He presents in a straightforward manner and does not appear to be exaggerating his symptoms. However, I advised him that therapeutic options were somewhat limited and I did not have much else to suggest. I did recommend that he return to an active therapeutic exercise program. This was noted in my March 11, 2000 letter that was copied to you. I feel that it is quite important for him to maintain his activities and a lumbar stabilization exercise program may be helpful if he can tolerate it. As there was no further treatment that required my direct involvement, no formal follow-up was required.”
A WCB orthopaedic consultant examined the claimant on April 14, 2000. The consultant commented that the initial work related injury was a musculoligamentous strain of the lumbar spine. “The later identified L4-5 disc lesion must be accepted as arising out of the work related injury in the absence of any evidence of previous low back disability. There is no record of this claimant having demonstrated signs of lumbar nerve root compression on any of the examination reports, or on this examination.” The consultant outlined a number of workplace restrictions and recommended that the claimant be referred for a low back stabilization and overall reconditioning program for a maximum 6 week duration. Subsequent file information revealed that the claimant commenced this program on July 14, 2000.
The claimant underwent a repeat CT scan of the lumbosacral spine on August 21, 2000. The results of this investigation were as follows:
“….The L3-4 disc demonstrates a far left lateral disc protrusion which approaches the left L3 root in its exit foramina and deviates it laterally. There is associated left lateral osteophyte formation.
At L4-5, there is shallow posterior and left posterolateral disc protrusion which approaches the thecal sac and may well compress both L5 nerve roots left greater than right.
At the lumbosacral level, there is a posterior ridge osteophyte and associated disc protrusion that just approaches the thecal sac and the left S1 root.
The spinal canal diametric is relatively narrow on a congenital basis. No level of significant superimposed spinal stenosis is recognized.
Comparison to September 19, 1999 examination demonstrates that the L4-L5 disc protrusion appears less prominent at this time. There is some resorption of the left lateral component of the disc protrusion. There is no other significant interval change.”
In a letter dated September 29, 2000, the claimant’s treating physician stated in part that the claimant had an ongoing symptom complex that could only be attributable to his workplace compensable injury. Objective findings were noted both on physical examination and with the CT scan. The assessment remained that of mechanical back relating to disc herniation and limitations of movement mobility and function.
In a memo addressed to the WCB orthopaedic consultant dated November 14, 2000, a WCB adjudicator noted that the claimant was referred to reconditioning in July 2000 which he attended until September 2000. The physiotherapy reports coupled with the attending physician’s report states that the claimant should have restrictions and that he should remain in a light duty position. Given that the claimant had a disc protrusion at the L3-4 and L4-5 level, was it realistic to expect that the claimant’s back would resolve. In a response dated December 28, 2000, the orthopaedic consultant noted that the claimant did not attend for treatment from July 17 to August 8, 2000 and was absent again from August 14 to 18, resuming August 21, 2000. “Does this suggest failure to mitigate the injury.” With respect to the letter from the attending physician dated September 29, 2000, the consultant noted there was reference to a further CT scan dated August 21, 2000. It was implied that a demonstrated abnormality at L3-4 substantiates the claimant’s continuing perceived disability, in spite of the CT evidence of possible lessening of the lesion at L4-5 which was accepted as a responsibility of the WCB. The consultant stated that the new findings at L3-4 had doubtful clinical relevance in his opinion and the same applied to the apparent changes at L4-5. The consultant concluded that no further treatment was indicated and he made particular note of the poor outcome of the physiotherapy for low back stabilization and reconditioning. He was of the view that the restrictions proposed by the family physician were reasonable and were considered permanent.
In view of the orthopaedic consultant’s comments, the sector manager advised the employer on January 8, 2001, that the claimant was yet to recover from the effects of his injury and he had a back at risk. The employer was advised of the permanent workplace restrictions outlined by the consultant which precluded the claimant from returning to his pre-accident work.
In a letter to Review Office dated February 26, 2001, the employer indicated that the claimant’s entire file was referred to an independent orthopaedic specialist for review (report dated February 21, 2001). Based on this report, it was the employer’s position that on a balance of probabilities, it was unlikely that the claimant’s ongoing symptoms were related to a musculoligamentous injury that occurred on April 14, 1999 or that the disc pathology was a consequence of the compensable accident. The employer also believed that the imposition of restrictions on a permanent basis was not supportable from a pathological standpoint. On May 29, 2001, the claimant’s union representative responded to the employer’s appeal.
Prior to considering the above appeal, Review Office sought the opinion of a WCB orthopaedic consultant assigned to Review Office.
On July 6, 2001, Review Office determined that the worker’s ongoing low back complaints continued to be related to the accident sustained at work on April 14, 1999 and that the work restrictions identified were considered to be permanent. Review Office based its decision on the following opinions which were expressed by the orthopaedic consultant to Review Office:
“He was of the opinion that the most probable diagnosis of the injury sustained by the worker on April 14, 1999 was discogenic back pain related to L4-5 disc injury. The Orthopaedic Consultant to Review Office also noted the radiological and CT evidence of multilevel disc disease, but concluded that the worker’s symptoms were typical of an L4-5 disc injury. He felt that both the compensable injury and the pre-existing condition were still playing a role in the worker’s ongoing problems, and stated that it was unlikely that the worker would be able to return to his former work in the future.”
Review Office concluded on a balance of probability, that the claimant continued to suffer from the effects of his compensable injury and permanent restrictions were warranted.
On July 6, 2001, the employer’s representative appealed Review Office’s decision and an oral hearing was arranged. The employer’s representative also submitted a September 18, 2001 report from an orthopaedic surgeon, which he stated he would make reference to at the scheduled oral hearing.
Reasons
This case involves a worker who suffered back injuries as a result of a workplace accident in April 1999. His claim was accepted by the WCB and benefits paid accordingly. In addition, the board determined that permanent work restrictions should be instituted.
His employer questioned the ongoing acceptance of the claim, as well as the permanence of the restrictions. The employer appealed these issues to the Review Office, which upheld the decision of the adjudicator. The Review Office decision was subsequently appealed to the Appeal Commission.
Two specific issues were before the panel: whether or not the worker’s ongoing problems with his lower back are related to his workplace accident; and whether or not his workplace restrictions should be permanent.
For the appeal on the first issue to be successful, the Panel must determine that his medical problems are not causally related to the compensable injury. In respect of the second issue, the Panel must determine that restrictions should either be temporary or no longer necessary.
We were not able to come to either determination.
In our deliberations, we had the benefit of an oral hearing, at which we heard presentations from advocates representing both parties. We were also able to ask questions of the claimant.
The employer’s representative asked us to consider reports prepared by two orthopaedic consultants, contracted by the employer to review the claimant’s medical file.
(As an aside, there was some discussion at the hearing – and prior to it – as to whether or not the Panel should consider one of the reports, prepared by a retired physician, no longer licensed to practice. We informed both advocates that we would accept such evidence, but would allow them to present argument as to how much weight we should attach to the report in question.)
The employer’s advocate placed considerable weight on the opinion of this consultant. However, we note that when the consultant was asked whether or not the claimant’s ongoing symptoms are related to the accident, he did not give a definitive answer. He wrote:
“The available documentation indicates continuing back pain since the accident ….. It is evident from x-ray and C.T. scan that degenerative changes are present ….. These findings are consistent with either the pre-existing degenerative changes or failure to adequately remobilise the spine after the accident …”
When asked whether or not permanent restrictions appear to be warranted, he responded:
“…there is a real possibility that performing back exercises …. could afford relief. In my opinion, it would be reasonable to recommend temporary restrictions with reassessment at appropriate intervals.”
We were also asked to consider the opinion expressed by a second orthopaedic consultant – from Alberta – who concluded that:
“….at worst, this claimant has sustained a low back strain from which he should have fully recovered. …. Regarding his work restrictions, …. This claimant should be fit for his previous employment.”
In coming to these conclusions, this consultant notes that, at the time of the injury, there were no neurological findings to indicate any discopathy.
The claimant’s advocate relied on the considerable medical evidence on the file. This medical evidence included reports of two different “call-in” examinations conducted by board specialists, as well as extensive reports from a specialist in Physical Medicine and Rehabilitation who treated the claimant.
There is no doubt among the various treating physicians that the eventual diagnosis was that the claimant was suffering from a disc injury. However, there was some discussion as to the etiology of the injury.
There was some debate as to when neurological signs first appeared, the implication being that, if they were not present shortly after the injury, their later appearance would indicate another cause for any disc injury. We note, from the medical file, that the claimant’s family physician first noted ‘radiation of discomfort’ about three weeks after the injury. In that report, dated May 14, 1999, he queried the possibility of ‘sciatica/disc’ problems. As well, the treating physiotherapist reported, in late May, that the claimant was suffering ‘discogenic pain’.
In order to help arrive at a clear diagnosis, the claimant was examined by a board specialist in April 2000. He concluded that:
“The later identified L4-5 disc lesion must be accepted as arising out of the work related injury in the absence of any evidence of previous low back disability.”
This specialist recommended the continuation of the work restrictions, as well as a program for low back stabilization and overall reconditioning. He also implied that the claimant might not be able to return to his regular duties.
In a December memo, this same doctor proposed restrictions which were to be permanent.
After receiving the first of the employer’s orthopaedic consultant reports, which contradicted the assessment of the board specialist, the Review Office sent the medical file for an opinion by another orthopaedic consultant. He expressed the following opinions:
- “The claimant is still reported to be symptomatic and it (the compensable injury) may still be playing a role, as well as the pre-existing (the degenerative disc disease).
- The worker has not recovered from the effects of the compensable injury of April 14, 1999, “according to the last medical submission.”
- “The restrictions as outlined … are reasonable … After this length of time the likelihood of rehab back to former work is remote.”
We found this opinion, as well as the April 2000 report of the ‘call-in’ examination, to be particularly persuasive.
In his presentation to the Panel, the employer’s representative asked us to consider referring the claimant for examination by an independent orthopaedic consultant. We are of the view that this is not necessary, as the claimant has been seen by a number and had his file reviewed by still more. We note that this representative had made the same request of the Review Officer, naming a specific consultant. The Review Officer did, indeed, refer the file to this consultant, who came to a conclusion unfavourable to the employer’s position.
Having considered the various medical opinions in respect of the claimant’s condition, we conclude that the preponderance of evidence supports the decision of the Review Office.
Therefore, we conclude that the worker’s ongoing problems with his lower back are related to his workplace accident; and that his workplace restrictions should be permanent.
Accordingly, the appeal is denied.
Panel Members
T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
T. Sargeant - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 15th day of October, 2001