Decision #175/06 - Type: Workers Compensation
Preamble
This appeal deals with the causal relationship between the worker’s ongoing back difficulties and his October 27, 1999 workplace accident.
On October 27, 1999, the worker suffered a compensable injury to his lower back. Benefits were paid until September 12, 2003 at which time the Workers Compensation Board (WCB) determined that the worker had recovered from the effects of his compensable injury. All residual symptomatology was related to the worker’s pre-existing degenerative back condition for which the WCB would not accept responsibility. This position was upheld by Review Office in a decision dated May 21, 2004 and confirmed on April 27, 2005. It is this decision that the worker appealed to the Appeal Commission.
A hearing was held on September 28, 2006. The worker appeared and provided evidence. He was represented by a worker advisor. No one appeared on behalf of the accident employer.
Issue
Whether or not the worker is entitled to wage loss benefits beyond September 12, 2003.
Decision
That the worker is not entitled to wage loss benefits beyond September 12, 2003.
Decision: Unanimous
Background
Reasons
Introduction
On October 27, 1999 the worker injured his back in a lifting incident which was diagnosed as a muscle strain, and later a disc protrusion. He returned to work in mid-January 2000 but was not able to work more than 3 hours due to the pain. Since that time, the worker has made several attempts at returning to work, either at his regular duties or modified duties, but has never been able to work full time. With each subsequent attempt at returning to work he has injured his back. The WCB has taken the position that the worker recovered from his October 1999 workplace injury by September 2003 and that any ongoing symptomatology or subsequent injuries were due to the worker’s pre-existing degenerative disc disease. The worker disagrees. He says that he was able to work without significant difficulty up to the October 1999 accident. That has not been the case since. He says that the October 1999 accident enhanced his pre-existing back condition. As he remains symptomatic, he has not recovered from the October 1999 injury and is therefore entitled to benefits after that date.
Background
On October 27, 1999 the worker was lifting at work when he felt a sharp pain in his back which brought him to his knees for 10 to 15 minutes. He was diagnosed with a muscle strain which was confirmed on examination by a WCB chiropractic advisor on January 5, 2000. At that time, there were no radicular signs or symptoms which would have suggested nerve root involvement. There were however pre-existing degenerative osteophyte formations confirmed on a November 8, 1999 x-ray that were thought to prolong the worker’s recovery from his injury.
The worker attempted a return to work on January 24, 2000 but only lasted 3 hours. After that, he began to experience radicular symptoms of L4 root involvement which were confirmed on an August 2000 CT scan. X-rays taken in July 2000 also showed that the worker’s degenerative disc disease had progressed since November 1999.
Given the nerve root involvement, the worker was referred to a physiatrist on November 14, 2000. The WCB chiropractic advisor reviewed the physiatrist’s report detailing the worker’s symptoms. He found them to be very similar to those found at his March 2000 examination. He commented however that although the worker had some right L4 radicular findings, the main barrier to the worker returning to work appeared to be pain. He suggested a graduated return to work or a work hardening program.
A WCB medical advisor also called the worker in for an examination in January 2001. At this examination the worker reported ongoing low back pain. The WCB medical advisor only noted subtle findings of right radiculopathy. When later asked by the WCB case manager whether the worker would place himself at risk of further harm if he returned to his regular work duties, she responded:
“The [worker] had a disc bulge at L4/5 [with] a component extending laterally towards the L4 nerve root. He also has findings of facet arthropathy at L4-L5 and L5-S1 on CT scan. The [worker] has [degenerative disc disease] and may in the future have further aggravations of this [with] repetitive heavy lifting, and repetitive or prolonged bending/twisting of the L/S spine. The goal however is to return the [worker] to his pre-accident workplace activities safely with the education as to how to prevent further injury and with a sufficient level of fitness to minimize his risk in the future.”
An epidural steroid injection was done by the physiatrist in March 2001 but it did not provide the worker with any significant relief. The worker then began a course of physiotherapy before returning to his regular duties. The worker found this return to work difficult. He saw his family physician who noted worsening of the back muscle spasm. No radicular symptoms were noted. These findings were confirmed by the physiotherapist in October 2001. Given the worker’s functional difficulties at work, it was recommended by his physician and the physiotherapist that the worker only work half time with restrictions.
When the worker’s file was reviewed by a second WCB medical advisor in January 2002, it was questioned whether the workplace accident might have caused an enhancement of his pre-existing degenerative disc disease. He ordered an MRI which was done in February 2002, and which only showed multi-level degenerative changes in the lumbar spine with no evidence of nerve root compression. On the basis of this MRI, this WCB medical advisor thought that the worker could continue with his graduated return to work program with the previously outlined weight restrictions, and with a gradual increase in hours up to full time.
The worker felt however that he was unable to increase his hours. A call in examination was therefore arranged in June 2002 with the second WCB medical advisor. Once again there was no evidence of nerve root irritation or compression. Given the worker’s continuing back complaints that could not be explained by a disc prolapse, he was referred to a psychologist. The psychologist did not find evidence of any psychological condition that would prevent him from increasing his hours at work other than the worker’s own self-limitation secondary to pain.
The worker was still unable to increase his work hours even though he was working alternate duties with the accident employer. He also had recurrences that resulted in further time loss.
In April 2003 the second WCB medical advisor reviewed the file again. Given that the worker’s nerve root signs and symptoms had settled, he thought that the worker’s ongoing symptoms were due to mechanical back pain related to his pre-existing degenerative disc disease and significant multilevel osteoarthritis. He thought that the worker should continue to have restrictions in place, though they would be preventive and not permanent. He reiterated this opinion after a July 7, 2003 call–in examination of the worker which revealed no evidence of nerve root irritation or compression.
This opinion was confirmed by an orthopaedic consultant to the Review Office on May 20, 2004:
“The [worker] aggravated a pre-existing problem of multilevel degenerative disc disease and osteoarthritis of the lumbar spine…[This condition] accounts for the recurrent back symptoms…[His] history is typical of a natural progression of [degenerative disc] disease and [osteoarthritis] of the spine which can be aggravated by periodic work and non work related activity. [The worker has recovered from the effects of the compensable injury.] The ongoing problems are not the result of the one [compensable injury] in [1999] but due to the pre-existing conditions of [degenerative disc disease] and [osteoarthritis].”
An occupational health physician who saw the worker in June 2004 disagreed with this position. His March 18, 2005 report outlines his opinion that:
- the October 1999 accident enhanced the worker’s pre-existing degenerative disc disease as it rendered him symptomatic with acute pain recurrences and a loss of functional ability;
Analysis
To accept the worker’s appeal we must find that he had not recovered from his October 1999 workplace accident by September 12, 2003. We are unable to make that finding.
The medical evidence on file suggests that the worker initially suffered a compensable muscle strain and later a disc protrusion with nerve root involvement. These radicular symptoms were no longer found by his family physician or the second WCB medical advisor in 2002 and 2003.
Though the worker has not returned to his pre-accident duties and continues to express limitations in his functional capacity and pain, we find that these are more likely than not unrelated to the compensable injury.
Indeed, the evidence is clear that the worker suffers from pre-existing multi-level degeneration. This condition is natural and progressive (as noted in the July 2000 x-ray) and can cause functional difficulties with lifting, bending and twisting. Considering the mechanism of injury, we do not find that the workplace accident enhanced this condition.
Further, there is no convincing evidence that the workplace accident caused the worker to suffer from a pain disorder. The psychologist’s report is clear in this regard.
For these reasons, we find on a balance of probabilities that the worker’s ongoing back condition is not related to his compensable injury. We therefore find that he is not entitled to wage loss benefits beyond September 13, 2003.
Accordingly, the worker’s appeal is denied.
Panel Members
L. Martin, Presiding OfficerM. Bencharski, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Martin - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 9th day of November, 2006