Decision #167/06 - Type: Workers Compensation
Preamble
This case concerns the relationship between the worker’s workplace injury, his pre-existing condition and his ongoing medical condition. The worker was injured on May 25, 2004 while lifting a heavy pail of paint. He applied to the Workers Compensation Board (WCB) for benefits. His claim was accepted and he was paid wage loss benefits until the WCB determined that the worker had recovered from the workplace injury and that his ongoing complaints were related to his pre-existing condition. The worker appealed this decision. The worker also appealed the WCB decision not to convene a Medical Review Panel (MRP).
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 on July 6, 2006, August 9 and September 15, 2006.
Issue
Whether or not the worker had recovered from the effects of his compensable injury; and
Whether or not a Medical Review Panel should be convened pursuant to subsection 67(4) of the Act.
Decision
That the worker had recovered from the effects of the compensable injury; and
That a Medical Review Panel should not be convened pursuant to subsection 67(4) of the Act.
Decision: Unanimous
Background
On May 25, 2004, the worker picked up a pail of paint weighing about 50 kgs. when he heard a snap in his lower back. He sought medical attention on the day of the accident and was diagnosed with a lumbar sprain. The claim was accepted by the WCB and benefits were paid while the worker attended physiotherapy treatments.
On June 7, 2004, x-rays of the worker’s lumbosacral spine revealed moderately severe degenerative narrowing at the L5-L6 disc posteriorly.
In a progress report of June 11, 2004, the treating physician indicated that the worker had less pain in his lower back and that he should continue with physiotherapy treatments. It was expected that the worker would return to his regular duties by June 21, 2004.
An occupational health fitness form was completed by the attending physician on June 18, 2004. It indicated that the worker could return to work on June 21, 2004 and was to avoid lifting up to 25 lbs. for one week.
The worker did not return to his regular duties on June 21, 2004 and his employer terminated his employment.
On June 25, 2004, the treating physician reported that the worker’s right low back pain still persisted and that he had less range of motion in his back than the previous visit. The physician suggested a CT scan and for the worker to remain off work and to continue with physiotherapy.
On July 26, 2004, a WCB case manager advised the worker that he was not entitled to wage loss benefits beyond June 16, 2004 as it was determined that he had recovered from the effects of his work related injury. The case manager indicated that there was little in the way of medical findings to support that the worker was not able to return to work on June 21, 2004. The worker was further advised that the WCB would continue to accept responsibility for medical treatment related to the compensable injury and that arrangements would be made for him to be examined at the WCB’s healthcare branch in order to monitor his status.
The worker was examined by a WCB medical advisor on July 27, 2004 and the following comments were made:
“This claimant’s occupation and method of injury have been reviewed. The claimant’s past history has also been reviewed. The examination today showed a claimant who gave no evidence of pain behavior or augmentation of symptoms. The examination itself, indicates the claimant has a radiculopathy on the right side with distribution of L5-S1. This appears to be in keeping with the described compensable injury.”
As a form of treatment, the medical advisor recommended chiropractic and physiotherapy treatment to stabilize the worker along with work restrictions for a six week period.
A CT scan of the lumbar spine was performed on July 28, 2004. The radiological report indicated that there was shallow posterior disc bulging without evidence of focal herniation, spinal stenosis or nerve root compression at L3-4. At L4-5, there was disc space narrowing and a large central and left paracentral disc herniation. The disc material appeared to compress the left L5 nerve root in the lateral recess. Disc material also compressed the anterior aspect of the thecal sac and contacted the right S1 nerve root. No definite compression of the right L5 nerve root was appreciated. The clinical significance of this was uncertain given the left sided findings and right sided symptoms. This resulted in mild central spinal stenosis. At L5-S1 there was disc bulging without focal herniation, spinal stenosis or nerve root compression.
A report was received from an orthopaedic specialist who indicated that the worker had previously undergone lumbar laminectomies and discectomies at the L4-5 and 6 levels on September 14, 1993. There was a large extruded disc compressing the left nerve root and the disc space was curetted out. The specialist commented that the worker’s postoperative course was satisfactory and that he should not do any heavy work for two months.
A WCB medical advisor reviewed the file on October 20, 2004. He indicated that the worker’s injury represented an aggravation of a pre-existing condition. He noted that the worker’s left sided findings were related to the 1993 surgery.
The WCB arranged for an MRI to be performed and the results were reviewed by a WCB medical advisor on February 21, 2005. He indicated that the worker’s left sided findings related to his prior back surgery and that there were no right sided findings. It was concluded by the medical advisor that the worker suffered an aggravation of his mechanical low back condition which had now resolved.
The worker was subsequently advised by his WCB case manager that based on the MRI evidence and opinion expressed by the WCB medical advisor, that he likely suffered an aggravation of his pre-existing condition as a result of his compensable injury and at this juncture, any ongoing problems were related to his pre-existing condition.
In January 2006, a worker advisor provided the WCB with medical information dated December 6, 2005 which he felt supported the position that the worker had not recovered from the effects of his injury and that he was entitled to vocational rehabilitation benefits. An MRP was also requested in accordance with subsection 67(4) of The Workers Compensation Act (the Act).
In his report dated December 6, 2005, a sports medicine specialist stated the following:
“In summary, this patient has a right S1 radiculopathy with signs of active nerve root irritation. In my opinion, based on the information provided to me regarding the onset and persistence of this patient’s symptoms following the workplace incident, there appears to be a probable cause and effect relationship with the workplace incident.
Despite the extensive scarring and encasement of the L5 nerve root, this appears to be asymptomatic on clinical examination as the left L5 nerve root functions normally and there are no symptoms described in a left sided L5 pattern.”
On February 7, 2006, the WCB case manager informed the worker advisor that the medical report of December 6, 2005 was reviewed by two WCB medical advisors. It was both their opinions that the worker suffered an aggravation of his pre-existing condition and that his ongoing symptoms at this juncture were solely related to his pre-existing condition. Therefore, the WCB was not prepared to overturn the decision of February 25, 2005.
In a March 6, 2006 decision, a WCB manager denied the worker advisor’s request to convene an MRP. He stated that the opinion expressed by the sports medicine specialist differed from that of the WCB medical advisor’s opinion, but the sports medicine specialist did not provide “a full statement of the facts and reasons supporting a medical conclusion” as was required by the Act.
On March 27, 2006, the case was reconsidered by Review Office. Based on its review of the worker’s initial diagnosis, the pre-existing changes in his back due to a prior non-compensable back injury and the CT scan and MRI findings which failed to demonstrate any right sided nerve root impingement, Review Office concluded that the worker had recovered from the effects of his compensable injury.
With respect to the convening of an MRP, Review Office noted that the medical information provided by the worker advisor did not meet the definition of an opinion in that the physician stated “there appears to be a probable cause and effect relationship with the workplace incident”. Review Office noted that the specialist did not provide any objective medical findings to support a relationship and therefore there was no evidence of a difference of medical opinion between the physician and the medical advisor.
On July 6, 2006, an appeal panel hearing took place. Prior to deciding whether or not the worker had recovered from the effects of his compensable injury and whether to convene an MRP, further information was requested from the worker’s physical medicine and rehabilitation specialist. On July 14, 2006, all interested parties were provided with the specialist’s response and were asked to provide comment.
On August 9, 2006, the panel met further to discuss the case. It was decided that additional information was required from the physical medicine specialist. On August 13, 2006, all interested parties were provided with the specialist’s report and were asked to provide comment. On September 15, 2006, the panel met again to render its final decision on the issues under appeal.
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 he 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.
The worker has also asked that an MRP be convened pursuant to subsection 67(4). This subsection provides that a worker is entitled to have an MRP convened where there is a difference of opinion between the worker’s physician and a WCB medical officer on a matter affecting entitlement to compensation.
Worker’s Position
The worker attended the hearing with a worker advisor who made a presentation on the worker’s behalf. The worker answered questions posed by his representative and by the panel.
The worker’s representative submitted that the evidence establishes that the worker has not recovered from the workplace accident. He noted that three physicians support the position that due to his workplace injury, the worker is unfit to return to his employment which requires extensive heavy lifting. He also submitted that the workplace injury enhanced the worker’s pre-existing condition. He referred to the April 26, 2006 report from the worker’s current treating physician who commented that the worker’s pre-existing condition was enhanced by the workplace injury.
Regarding the second issue, the worker’s representative asked that an MRP be convened pursuant to subsection 67(4) of the Act if the panel did not accept the worker’s appeal on the first issue. He submitted that “…a difference of medical opinion will exist between the Board’s medical officer and the claimant’s physicians…”
The worker advised that his duties included lifting heavy containers of paint. He estimated that the containers weighed between 45 and 50 kgs. He noted that he felt pain on the right side of the lower back.
The worker described the medical treatments that he received. He advised that two physicians gave him needles in his back but that he did not receive any long term benefit from these treatments. He also received physiotherapy and found it helpful. He found that the chiropractic treatments made him “really sore”. Regarding current symptoms, the worker advised that he is in constant pain and has spasms in his leg. He listed his current prescription medications.
The worker advised that he had a prior injury in 1989 and had surgery for this injury in 1993. He advised that when he started working for the employer he asked them to buy a back support belt so that he would not hurt his back. He had used a belt after the 1993 surgery. He advised that he wears the belt all the time and cannot function without it.
Employer’s Position
The employer was represented by its manager of human resources. She noted that the employer had concerns about the acceptance of the claim. The representative confirmed that the employer supported the WCB’s adjudication on the claim.
Analysis
The first issue before the panel was whether the worker has recovered from the effects of the compensable injury. For the appeal of this issue to be successful the panel must find that the worker continues to have symptoms caused by the workplace injury. The panel did not make this finding.
The panel finds, on a balance of probabilities, that the worker has recovered from the workplace injury. In arriving at this decision the panel places significant weight upon the following evidence:
- the worker has a significant pre-existing condition related to a non-work related 1989 injury and related surgery. File information confirms that in 1993 the worker underwent lumbar laminectomies and discectomies at levels L4-5-6.
-June 18, 2004 Occupational Health Fitness Assessment Form completed by the worker’s treating physician which indicates that the worker is likely fit to return to regular duties as of June 21, 2004.
-October 20, 2004 opinion of WCB medical advisor that the worker’s workplace injury represented an aggravation of the worker’s pre-existing condition and that left sided findings related to the old injury.
-February 8, 2005 MRI which found that no right-sided nerve root compression is demonstrated. In reference to the L4-L5 area the MRI report noted:
“There appear to be encasement of the left L5 nerve root rather than displacement. These changes favor relatively extensive and quite nodular epidural fibrosis rather than recurrent disc protrusion. There is diffuse posterior disc prominence which does approach the thecal sac but it certainly does not appear to compress the right L5 nerve root to explain the patient’s right-sided symptoms. The described epidural fibrosis involve the left L5 root.”
-March 14, 2005 opinion of a WCB medical advisor after a review of an MRI that “It can be concluded that C (claimant) suffered aggravation of mechanical low back condition which has resolved. Any residual complaints related to pre-x condition of back.”
- August 25, 2006 opinion of treating physical medicine specialist. The specialist commented that:
“The etiology of (the worker’s) ongoing symptoms was not absolutely clear. His MRI demonstrated a small central disc protrusion at L5-S1 as well as extensive and nodular epidural fibrosis mostly at the L5 level and most significantly affecting the left L5 nerve root. His symptoms were thought to be related to those findings. As he did not present with a clear-cut uni-level radiculopathy, it is difficult to clinically distinguish which of those two findings (disc or nodular fibrosis [central portion]) plays the predominate role, if either.
I do not have details related to his work-related injury or the specific diagnosis at that time. However, the extensive epidural fibrosis would be considered a medically probable consequence of the surgery and disc herniation that he previously had.”
The panel concludes on a balance of probabilities that the worker’s on-going symptoms are not related to the workplace injury, but rather to his significant pre-existing medical problems in his lower back.
The second issue was whether an MRP should be convened pursuant to Subsection 67(4) of the Act. The panel notes that the representative did not direct the panel to a difference of medical opinion and the panel, in its review of the medical reports, did not find a difference of opinion as required by the Act.
The worker’s appeal is dismissed.
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 30th day of October, 2006