Decision #35/07 - Type: Workers Compensation
Preamble
This appeal deals with the relationship between the worker’s medical condition after January 13, 2006 and his workplace injury.
The worker filed a claim for an injury which occurred at work on September 13, 2005. The Workers Compensation Board (WCB) accepted the worker’s claim and paid benefits until January 13, 2006. The WCB and its Review Office found that the worker had recovered from the injury by that date. The worker appealed to the Appeal Commission.
An appeal panel hearing was held on December 13, 2006, at the request of a worker advisor, acting on behalf of the worker. The panel discussed this appeal on December 13, 2006 and sought additional information from a chiropractor and orthopaedic surgeon. The panel met again on February 7, 2007 to discuss the case further.
Issue
Whether or not the worker is entitled to wage loss benefits beyond January 13, 2006.Decision
That the worker is entitled to wage loss benefits from January 13, 2006 to March 24, 2006.Decision: Unanimous
Background
The worker has several prior claims with the WCB for back and neck injuries dating back to 1987.
On September 13, 2005, the worker twisted his lower back and pelvis region when he tried to catch a 35 to 45 lb. cement block which had fallen off a pallet. The worker was subsequently diagnosed by his family physician with a muscular backache and by his chiropractor with “severe spinal strain/sprain with acute mild spasm with severe antalgic posture.” The WCB accepted responsibility for the claim and the worker was paid wage loss benefits while he underwent chiropractic treatment.
Chiropractic x-rays of the lumbosacral spine taken September 14, 2005 revealed minor wedging at the L2 and L3 disc spaces on the right and the L5 area was narrowed.
Due to complaints of pain and weakness radiating down the right leg, the worker underwent a CT of his lumbar spine on October 3, 2005. A tiny focal left paracentral disc herniation was identified at the L5-S1 level. There was only minimal compression of the underlying thecal sac.
The worker was seen by his family physician on November 9, 2005. The physician reported that the worker complained of back pain and pain in each leg which was worse on the right side.
On October 31, 2005, the worker was diagnosed with torticollis by his treating chiropractor.
On November 29, 2005, the worker’s back condition was assessed by a WCB chiropractic consultant. Based on his examination findings, he felt the worker sustained a soft tissue injury involving his lumbosacral spine as a result of his accident and that the worker was pain focused. There were no distinct indications of nerve root entrapment found during the examination. The worker did state that he noticed little improvement in his overall back situation. The WCB chiropractic advisor recommended that the worker consult a physiotherapist regarding a supervised exercise activity for his lumbosacral condition. He also suggested that the worker was fit for light duty work with restrictions for a 3 to 4 week time period.
Arrangements were then made for the worker to attend a physiotherapist for treatment. In a letter by his WCB case manager dated December 7, 2005, the worker was advised that he was expected to return to his full regular duties on January 5, 2006 after three to four weeks of physiotherapy treatment in combination with chiropractic treatment once a week.
On January 5, 2006, the physiotherapist advised the WCB case manager that she tried to get the worker active as much as possible but he had a higher pain behavior as compared to his objective findings. The worker’s last treatment was on January 3, 2006.
On January 5, 2006, the chiropractic advisor who examined the worker on November 29, 2005, stated in a memo that the worker had received sufficient therapy given the nature of his injury.
In a letter dated January 5, 2006, the worker was informed by his case manager that he was considered capable of returning to his full regular duties effective January 16, 2006 and that the WCB was unable to accept responsibility for his motor vehicle accident that took place on January 4, 2006 as it was considered a secondary accident and was unrelated to the workplace injury of September 13, 2005.
On January 6, 2006, the worker indicated that the motor vehicle accident accelerated his back pain and that the pain was shooting up his left leg and down his right leg.
A copy of the worker’s claim file from Manitoba Public Insurance was obtained and reviewed. On April 7, 2006, the WCB case manager advised the worker that she still considered him fit to return to his work activities and that wage loss benefits would not be extended beyond January 13, 2006. On May 16, 2006, a worker advisor, acting on the worker’s behalf, appealed the decision to Review Office.
On June 1, 2006, Review Office determined that the worker’s ongoing symptomatology could not reasonably be associated with his workplace injury of September 13, 2005. In Review Office’s opinion, the worker was properly compensated for the effects of his workplace injury and felt that his ongoing symptomatology was variable in nature and was not supported by objective medical evidence.
On August 30, 2006, the worker advisor provided Review Office with a report from an orthopaedic specialist dated July 28, 2006. The specialist stated, in part, that the worker was disabled from his pre-accident employment between January 2006 and May 30, 2006 and that the mechanism of injury was consistent with the spinal disc injury at L5-S1.
In September 2006, a WCB orthopaedic specialist reviewed the July 28, 2006 report at the request of Review Office. In his opinion, the differential diagnosis for the compensable injury was a musculoligamentous lumbar strain or a disc injury at L5-S1 without neurological compromise. He said the initial x-ray performed at the time of the compensable injury reported a narrow L5-S1 disc, which was indicative of a pre-existing degenerative disc disease and perhaps a pre-existing disc herniation.
On September 13, 2006, Review Office determined that no change would be made to its early decision based on the following rationale:
“Given the lack of any objective neurological findings, the worker’s failed veracity tests at the time of his examination by a WCB chiropractic advisor, and the lack of correlation between the worker’s primarily right-sided symptoms and the small left-sided disc herniation, Review Office is unable to accept that his ongoing complaints are attributable to the injury which occurred on September 13, 2005.”
On December 13, 2006, a hearing was held at the Appeal Commission at the worker advisor’s request. Following discussion of the case, the appeal panel opted to obtain additional information prior to rendering its final decision.
On January 12, 2007, all interested parties were provided with copies of the additional information that the panel received and were asked to provide comment. On February 7, 2007, the panel met to further discuss the case and render its final decision.
Reasons
Worker’s Position
The worker was represented by a worker advisor who made a submission on the worker’s behalf. The worker answered questions posed by his representative and the panel. The employer did not participate in this hearing.
The worker described the workplace accident. He advised that the accident occurred at approximately 5:30 or 6:00 PM after he had worked about ten hours. At the request of his supervisor, he worked for two hours after the incident to complete his shift. Regarding symptoms he advised that “It was burning all the way down my back on the right-hand side, going down my leg, and it was in the middle of my back also.”
The worker answered questions regarding a collision with a deer on January 4, 2006. He stated that this collision caused his condition to flare-up for a week or two.
When asked how his legs were at the time of the hearing compared to before the motor vehicle accident in January 2006, he advised that his legs were “a lot better” but added that if he does anything too strenuous he has pain on the right hand side of his lower back and throbbing pain on the left side. He stated that his left side pain is not as serious as the right side pain.
The worker advised that in January 2006 his back was definitely not ready to go back to work. Regarding his current condition, he advised that he is not able to do the heavy lifting that he used to do. He noted that his first chiropractor and the orthopedic specialist advised him that he should get out of heavy construction. He advised that prior to this injury he worked for many years in heavy construction.
He advised that he is not currently receiving treatment for his back. The last physician he saw regarding his back was the orthopedic specialist who he saw in July 2006.
The worker advised that on May 30, 2006 he commenced working as a carpenter’s helper and then worked at a light duty position assembling utility trailers. He was unable to continue working at this position due to another condition. Both positions involved lighter duties than his accident employment.
The worker’s representative noted that the orthopedic specialist has diagnosed the worker with a L5-S1 disc herniation resulting from the worker’s traction force twist accident. The representative also noted that although the worker had returned to work on May 30, 2006, the worker is seeking ongoing benefits as he has not recovered from the workplace injury. He noted that the orthopedic specialist has indicated the worker has permanent restrictions.
In answer to a question, the worker’s representative commented that the worker’s problems are both neurological and mechanical but that the neurological symptoms do not cause the ongoing pain, in terms of radiation down the right or left leg.
Analysis
The issue before the panel is whether the worker is entitled to wage loss benefits beyond January 13, 2006. For the appeal to be successful the panel must find that the worker’s loss of earning capacity after January 13, 2006 was caused by the workplace injury. In other words, the panel must find that the worker had not recovered form the workplace injury and was unable to work after this date. The panel found that the worker had recovered from the workplace injury by March 24, 2006 and accordingly is entitled to benefits to this date.
The panel finds, on a balance of probabilities, that the worker suffered a soft tissue injury as a result of the workplace accident. The panel finds this diagnosis is consistent with the mechanism of injury as described by the worker. The panel also notes this is the diagnosis provided by the WCB chiropractic consultant who examined the worker on November 29, 2005. This diagnosis is also consistent with the opinion of the family doctor who reported a diagnosis of “muscular lower backache” on February 6, 2006 and noted the worker had various tender muscles.
The panel notes the opinion of the orthopedic specialist set out in his reports of July 19, 2006 and July 28, 2006 that the worker suffered a lumbar spine disc injury. The panel notes however that the CT scan shows a left disc herniation but that the worker’s primary symptoms are right sided. The panel is therefore unable to relate the worker’s symptoms to the left sided disc injury or to relate the compensable injury findings of a disc injury to the original compensable accident. The panel also notes that the worker’s symptoms have migrated from side to side and is unable to relate these symptoms to a left sided disc herniation. As well, the lack of neurological findings is not consistent with a loss of earning capacity caused by a disc injury.
The panel finds, on a balance of probabilities, that the worker recovered from this injury by March 24, 2006. These findings are based on the reports of the family physician and the physiotherapist. The panel notes that the family physician noted excellent range of motion in a report dated February 6, 20006. In the same report the physician noted a likely return to work date of March 15, 2006. At the hearing, the worker reported that the physiotherapy he received after the motor vehicle accident was helpful. He confirmed that he received acupuncture treatments and that these provided relief for a couple days after each treatment. The panel notes that these are treatments aimed at muscular injuries. The panel notes that the worker’s physiotherapy treatments were to conclude on March 24, 2006. The panel also noted that the worker received no treatments after this date. The panel finds that the worker had recovered from the workplace injury upon the completion of his physiotherapy on March 24, 2006.
The worker’s appeal is allowed in part.
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