Decision #33/07 - Type: Workers Compensation
Preamble
This appeal deals with the relationship between the worker’s ongoing symptoms and his May 2005 workplace injury.
The worker was injured in May 2005 while carrying pails of paint. He submitted a claim to the Workers Compensation Board (WCB) for benefits. His claim was accepted and benefits were paid until December 30, 2005 when the WCB determined that the worker had recovered from his workplace injury. The worker disagreed with this decision and appealed to Review Office and then to the Appeal Commission.
A hearing was held on January 17, 2007, at the worker’s request. The panel discussed this appeal following the hearing.
Issue
Whether or not the worker is entitled to wage loss benefits and medical aid beyond December 30, 2005.Decision
That the worker is not entitled to wage loss benefits and medical aid beyond December 30, 2005.Decision: Unanimous
Background
On June 6, 2005, the worker filed a claim for discomfort and pain in his low back and both hips that he related to his work activities which involved carrying 5 gallon pails of paint up 10 flights of stairs. The date of accident was May 27-28, 2005 and was reported to the employer on June 3, 2005.
On June 1, 2005, the worker sought medical attention from a chiropractor and was diagnosed with an acute lumbosacral strain with sciatica nerve irritation.
On June 22, 2005, the treating chiropractor advised the WCB case manager that the worker had been treated in the past for a motor vehicle accident and that his prior complaints were specific to his low back and hips. He stated that the worker’s limp was not related to this injury. The chiropractor noted that the worker had some degree of a pre-existing condition in his hip that would slow his recovery combined with his sciatica.
An x-ray report of the lumbosacral spine dated June 20, 2005 showed “Early discopathy L3 with osteoarthritic changes. Facet asymmetry.”
A chiropractic progress report dated August 6, 2005 indicated that the worker was experiencing constant low back pain which was aggravated by bending and lifting at the waist.
On August 29, 2005, the treating chiropractor expressed his opinion that the compensable injury aggravated the worker’s pre-existing condition and that the aggravation was not yet over. He requested a further six weeks of chiropractic treatment for the worker. Prior to authorizing chiropractic treatment, the worker was asked to appear at the WCB’s offices on September 6, 2005, for an examination by a WCB chiropractic consultant.
Based on his examination findings, the WCB chiropractic consultant outlined his opinion that the worker sustained a soft tissue injury involving his left lumbosacral spine and left gluteal musculature from his May 28, 2005 workplace injury. He found an absence of neurological findings in the way of definitive nerve root signs. As the worker reported minimal change in his overall situation despite chiropractic treatment, the WCB chiropractic consultant recommended 3 to 4 weeks of an exercise/stretching program from a physiotherapist. He felt the worker was not yet fit to return to his normal activities.
On September 20, 2005, the treating physiotherapist reported that the worker complained of left more than right low back pain along with lateral leg and gluteal pain. This was worse with increased activity and sustained postures. The therapist’s diagnosis of the worker’s condition was chronic lumbosacral/gluteal injury and deconditioning.
In a discharge report dated November 8, 2005, the physiotherapist reported that the worker’s low back and leg pain was essentially unchanged. The final diagnosis was chronic lumbosacral injury and questionable discogenic pain.
The WCB chiropractic consultant advised the worker’s case manager on December 5, 2005, that in his opinion, the worker’s pre-existing condition was aggravated by the compensable injury and the effects of the aggravation were now over.
In a decision dated January 11, 2006, the case manager informed the worker that based on the weight of medical evidence, the mechanics of his accident and the duration of time since the compensable injury, and on a balance of probabilities, that he had recovered from the effects of his compensable accident. Therefore, no wage loss benefits would be paid beyond December 30, 2005. The decision was appealed by the worker and the case was forwarded to Review Office.
On January 26, 2006, Review Office confirmed that no responsibility would be accepted for the worker’s wage loss or medical treatment beyond December 30, 2005.
Subsequently, the worker was assessed by a neurosurgeon in July 2006. In his examination report, the specialist referred to recent x-rays of the lumbar spine which showed some evidence of degenerative changes. The neurosurgeon also noted that the clinical presentation seems to be mainly suggestive of mechanical low back pain. He then requested an MRI of the lumbosacral spine.
An MRI of the lumbosacral spine was performed on August 11, 2006. The impression revealed that the worker had multilevel degenerative disc disease with areas of disc bulging and herniations.
At a follow up visit on September 19, 2006, the neurosurgeon reported that the MRI findings were not suggestive of a radiculopathy and that most of the worker’s discomfort was mechanical in nature.
On October 4, 2006, Review Office confirmed that no responsibility would be accepted for wage loss benefits or medical treatment beyond December 20, 2005. Review Office felt there was no evidence to show that the worker’s employment duties in May 2005 played a role in the areas of concerns found on the MRI results. In October 2006, the worker disagreed with Review Office’s decision and a hearing was arranged.Reasons
Worker’s Position
The worker made a submission in support of his appeal and answered questions posed by the panel.
The worker provided a summary of his working career. He advised that he has worked for the employer on various occasions since 1974. He noted that he worked steadily in 2004 and 2005 before the injury. He described his May 2005 workplace injury which occurred when he slipped while carrying pails of paint up stairs.
The worker referred to various medical reports in support of his claim for ongoing benefits including reports from a neurosurgeon. He also referred to an MRI scan which identified two disc herniations. He submitted these could be consistent with heavy lifting, relating to the accident in May 2005.” The worker stated that “I did slip when I was going up the stairs and the twist is what caused the herniations. The herniations weren’t there before.”
The worker reported that the neurosurgeon has given him injections which have resulted in some pain relief. He advised that he is scheduled to receive further treatments in March 2006.
He acknowledged that he had joint pain on his left side before the accident but denied having lower back pain.
Employer’s Position
The employer was represented by its vice president. The employer’s representative advised that the employer had concerns about whether an accident had occurred. With respect to the issue before the panel, the employer’s representative noted the WCB decision that the worker suffered an aggravation of a pre-existing condition and that the aggravation had healed. He indicated that “So at this point we are of the opinion that the accident, and the resulting injury, has healed and that we should not be bearing the brunt of any further costs involved with that in terms of our claims experience.” The employer’s representative stated that he did not deny the worker was still in pain.
Analysis
The issue before the panel was whether the worker is entitled to wage loss benefits and medical aid beyond December 30, 2005. For the appeal to be successful, the panel must find that the worker’s inability to work and need for medical treatment after December 30, 2005 is caused by his May 2005 workplace injury. The panel was not able to make this finding. The panel finds, on a balance of probabilities, that the worker is not entitled to wage loss benefits and medical aid beyond December 30, 2005.
The panel notes that the worker has a significant pre-existing condition. The extent of the worker’s pre-existing condition was confirmed by July 2006 x-rays and an August 2006 MRI scan. As reported by the neurosurgeon, the x-rays showed evidence of degenerative changes of end plates with spurring, some narrowing of the disc space and some osteoarthritic degeneration of the zygapophyseal joints. The MRI scan showed evidence that the worker had multilevel degenerative disc disease with areas of disc bulging and herniations. It also noted areas of foraminal narrowing without central spinal stenosis nor nerve root compression.
The panel finds, on a balance of probabilities, that the accident of May 2005 resulted in an aggravation of the worker’s pre-existing condition and that this aggravation resolved by December 30, 2005. The panel notes the worker’s treating chiropractor reported in August 2005 that “Arthritic changes seen on x-ray a factor in his slow recovery.” The panel notes and relies upon the opinion of the WCB chiropractic consultant who advised WCB staff in December 2005 that the worker’s pre-existing condition was aggravated by the workplace injury but that the aggravation had resolved.
The worker submitted that the workplace accident caused the disc herniations noted on the MRI scan. However, the neurosurgeon provided the opinion that the MRI findings and the clinical findings do not suggest radiculopathy. In particular, the evidence suggests that the worker’s problems are not nerve related. The panel relies on the opinion of the treating neurosurgeon that the cause of the discomfort experienced by the worker is mechanical and that the worker suffers from mechanical low back pain. The panel notes that this would be consistent with the degenerative changes in the worker’s lower back.
As well, the panel notes that the neurosurgeon has treated the worker with injections to his facet joints. The worker reported that this resulted in some pain relief. The panel notes that the July 2006 x-rays showed evidence of osteoarthritic degeneration of the facet (zygapophyseal) joints and that the injections provided by the neurosurgeon are consistent with treatment of a degenerative condition.
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
Signed at Winnipeg this 14th day of March, 2007