Decision #156/06 - Type: Workers Compensation
Preamble
This case concerns the relationship between the worker’s workplace injury, her pre-existing condition and her ongoing medical condition. The worker was injured on November 13, 2002 while lifting bags of animal food. She applied to the Workers Compensation Board (WCB) for benefits. Her claim was accepted and she was paid wage loss benefits until May 12, 2003 at which time the WCB determined that the worker had recovered from the workplace injury and that her ongoing complaints were related to her pre-existing condition. The worker appealed this decision.
An appeal panel hearing was held on July 6, 2006, at the request of a worker advisor, acting on behalf of the worker. The panel discussed this appeal following the hearing on July 6, 2006 and again on September 11, 2006.
Issue
Whether or not the worker is entitled to wage loss benefits beyond May 12, 2003.Decision
That the worker is entitled to an extension of wage loss benefits to June 15, 2004.Decision: Unanimous
Background
On November 13, 2002, the worker was lifting a bag of animal food while on a ladder and felt a “pop” in her lower back. When seen for treatment following the injury, the worker was diagnosed with a strained lumbar muscle. Medication and physiotherapy were outlined as a form of treatment. The claim for compensation was accepted by the WCB and the worker was paid wage loss benefits while she attended physiotherapy treatment.
In a report dated December 19, 2002, an orthopaedic specialist outlined his opinion that the worker may have a left lower lumbar disc protrusion and a CT scan examination was arranged.
In a report dated January 2, 2003, the CT scan revealed the following findings:
- “No significant disc protrusion is present.
- Moderate diffuse posterior disc bulging is present at L3-L4 and L4-L5 which approaches the adjacent dural sac and nerve roots. Clinical correlation is required.
- A moderate central osteophyte is present at L4-L5 and moderate right posterior lateral osteophyte is present at L5-S1.
- Moderate degenerative narrowing of the exit foramen is present on the right at L5-S1. However, the existing nerve root does not appear to be significantly involved.”
In a follow-up report dated February 28, 2003, the orthopaedic specialist reported that the worker was complaining of numbness on the lateral side of her left leg and pain going down her left leg. There were no symptoms on the right. He noted that the CT scan findings demonstrated degenerative narrowing on the right side but there was no mention of any left sided problems.
At the request of primary adjudication, a WCB medical advisor reviewed the file on March 10, 2003. Based on his review, the medical advisor’s opinion was that the current diagnosis of the worker’s back condition was a back strain with pre-existing degenerative disease of the lumbar spine. He indicated that there was no other pathology related to the compensable injury. He felt that the worker may still have residual effects of the strain but this was questionable.
In a further file review on March 19, 2003, the medical advisor commented that the worker may be deconditioned because of her lengthy time loss. He noted that if the worker could not tolerate a graduated return to work she should be considered for a four week reconditioning program with immediate return to work at its completion. The medical advisor was of the view that restrictions would be preventive and related to the worker’s pre-existing condition.
On May 7, 2003, the case manager confirmed to the worker that it was the WCB’s position that she had recovered from the effects of her compensable injury and that her ongoing complaints were related to her pre-existing condition. Based on subsection 39(2) of The Workers Compensation Act (the Act), the worker was advised that her wage loss benefits would be paid to May 12, 2003 conclusive and final.
On July 31, 2003, a worker advisor provided the WCB with a letter from the treating physician which stated that the worker had not recovered from her compensable injury and that the worker had no pre-existing back condition. In light of this opinion, the worker advisor asked the WCB to reconsider its decision of May 8, 2003.
Following consultation with the WCB’s healthcare branch, the worker advisor was informed on August 15, 2003, that no change would be made to the May 8, 2003 decision.
In a further submission dated February 10, 2004, the worker advisor provided the WCB with additional medical information for consideration dated January 23, 2004, September 22, 2003 and an EMG report dated August 20, 2003. The worker advisor stated that the information supported her position that the worker had not recovered from the effects of her compensable injury and that the physician “identifies a Pain Disorder that is a direct compensable consequence, which as directed by Board policy #44.10.80.40 Further Injuries Subsequent to a Compensable Injury must also be deemed compensable.”
On March 15, 2004, a WCB medical advisor reviewed the medical information provided by the worker advisor. He was of the opinion that the new information failed to demonstrate the presence of pathology attributable to the effects of the compensable injury as opposed to symptoms arising from pre-existing conditions.
In a report dated March 10, 2004 which was received at the WCB on March 16, 2004, the treating sports medicine specialist referred to the results of an MRI assessment dated February 6, 2004. He stated, “This MRI showed consistency with an L5 lumbar radiculopathy which as per my January 23, 2004 (sic) was one of the possible initial diagnoses for [the worker’s] low back, regarding her workplace injury on November 13, 2002.”
On May 19, 2004, the worker was assessed by a WCB psychological advisor and a psychology intern. Based on the assessment, it was concluded that the worker fit the diagnosis of Pain Disorder with Psychological and Physical Factors. Recommendations were made for psychological treatment for the worker. On July 21, 2004, the WCB psychological advisor was of the opinion that this diagnosis was not directly related to the compensable injury.
On June 15, 2004, a neurosurgeon outlined his view that the worker’s low back pain had a mechanical component and was very probably related to the degenerative changes of the zygapophyseal joints seen on MRI.
On November 15, 2004, the worker was examined by a WCB medical advisor who found many inconsistencies during the examination and stated that the worker had 3/5 Waddell signs. She therefore could not provide a specific anatomic diagnosis for the worker’s ongoing complaints. The medical advisor further stated:
“While it has previously been felt that she suffered an aggravation of a pre-existing condition, I could find no evidence for that on today’s examination. One would expect with an aggravation of degenerative disc disease there may be findings of nerve impingement and none were present. She also had no lumbar spine tenderness. The distribution of her neurological symptoms to the left lower leg do not fit a dermatomal pattern. Weakness in heel/toe walking was not reproduced in the sitting exam. It is therefore my opinion that [the worker] has recovered from the effects of her compensable strain/discogenic pain.”
In a decision dated December 1, 2004, the worker was advised that based on the November 15, 2004 examination, a cause and effect relationship could not be established between her current condition and her compensable injury. Therefore, the WCB would not pay for any wage loss benefits incurred by the worker for her time missed from work.
The worker advisor provided the WCB with further medical evidence to support her position that the worker had not recovered from her workplace accident and that she remained unfit for the type of work she did when she was injured. On September 22, 2005, the WCB confirmed that the new medical evidence did not alter its previous decision. On December 6, 2005, a different worker advisor appealed the decision to Review Office.
On January 6, 2006, Review Office confirmed that the worker had recovered from her compensable injury based on the weight of medical information. On March 24, 2006, the worker advisor appealed this decision to the Appeal Commission and an oral hearing was arranged.
An oral hearing took place on July 6, 2006. Following the hearing, the appeal panel requested additional medical information from two of the worker’s treating physicians. On August 21, 2006, all interested parties were provided with medical information that the panel received and were asked to provide comment. On September 11, 2006, the panel met to further discuss the case and considered a final submission from the worker advisor dated August 23, 2006.
Reasons
Applicable Legislation
In this case the worker is seeking wage loss benefits. Under the Act the worker is entitled to wage loss benefits if she has a loss of earning capacity caused by the workplace injury. In general terms, if the worker is unable to work or suffers a partial loss of income as a result of the workplace injury, wage loss benefits are payable. Applicable provisions include subsections 4(2), 39(1) and 39(2).
Where the worker has a pre-existing condition, wage loss benefits are payable under certain circumstances in accordance with the WCB’s pre-existing condition policy, No. 44.10.20.10.
Worker’s Position
The worker attended the hearing with a worker advisor who made a presentation on behalf of the worker. The worker answered questions posed by her representative and the panel.
The worker described her work activities on the day of the injury which included unloading stock items from a truck. Later while moving 9 kg bags of animal food, her back popped. The worker advised the panel that prior to the November 13, 2002 workplace injury she had no problems with her back. She could do heavy lifting, work eight hours and had no limitations on her activities. She advised that her condition has not changed since the workplace injury except that her right leg is now also involved. She advised that her level of activity has decreased since the accident.
The worker described the treatments she has received and the medication that she has been prescribed.
The worker’s representative submitted that the worker is entitled to wage loss benefits as her loss of earning capacity has not ended. The representative submitted that if not for the accident, the worker would have continued to work and not be in a loss of earning capacity. She further submitted that the worker has not returned to her pre-accident status. She stated that all the worker’s physicians support the position that the worker’s symptoms are due to the accident.
In a written submission dated August 23, 2006 the representative commented:
“The key to benefits is the wording of the Pre-Existing Policy which specifically addresses wage loss benefits are payable, so long as there is an on-going loss of earning capacity, on the balance of probabilities, between an “accident” and a pre-existing condition (as identified by [doctor] in her notes dated September 20, 2005 as “her low back pain being related to degen. changes of the zygapophyseal joints. …) and trauma to the lumbosacral spine (a strain to the intervertebral discs, facet joints and sacroiliac joints of the L4-5 and L5-S1) as a result of the workplace accident ([treating orthopaedic specialist’s] report dated May 31, 2005).” (emphasis hers)
Employer’s Position
The employer was represented by an assistant manager who advised that the employer supports the decision made by the WCB.
Analysis
The issue before the panel is whether the worker is entitled to wage loss benefits beyond March 12, 2003. The panel notes that the worker suffers from a pre-existing condition. For the appeal to be successful, the panel must find that the worker’s loss of earning capacity after March 12, 2003 was caused by the workplace injury or by the workplace injury in concert with a pre-existing condition. In other words, the panel must find that the worker was not able to work after March 12, 2003 because of the workplace injury or the combination of the workplace injury and a pre-existing condition.
The panel finds that the worker continued to suffer a loss of earning capacity until June 15, 2004 due to the workplace injury and is entitled to wage loss benefits until June 15, 2004.
The panel notes that the worker had symptoms consistent with radiculopathy and was seen on March 18, 2004 and May 3, 2004 by a physician at a pain clinic who diagnosed the worker’s condition as left L5 radiculopathy with associated soft tissue pain of the left buttock and paraspinal musculature.
However, on June 15, 2004, the worker was examined by a neurosurgeon who reported that he could not detect any obvious signs of radiculopathy. In a June 15, 2004 report, the neurosurgeon comments that “I think that the low back pain has a mechanical component and very probably is related to the degenerative changes of the zygapophyseal joints seen on an MRI.”
The panel places significant weight on the opinion of the neurosurgeon who is an expert in this area of medicine and finds that as of June 15, 2004, any radiculopathy had resolved and that the worker’s loss of earning capacity after June 15, 2004 was not due to the worker’s workplace injury. The panel finds that by June 15, 2004 the workplace injury is no longer causing or contributing to the worker’s loss of earning capacity and that benefits as of that date are not payable under the WCB’s pre-existing conditions policy.
The worker is entitled to an extension of her wage loss benefits until June 15, 2004. Accordingly her appeal is allowed in part.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 17th day of October, 2006