Decision #42/07 - Type: Workers Compensation
Preamble
An appeal panel hearing was held on November 23, 2006 at the request of a worker advisor, acting on behalf of the worker. The panel discussed this appeal following the hearing and again on February 2, 2007.
Issue
Whether or not the worker is entitled to wage loss benefits and services beyond March 10, 2006.
Decision
That the worker is entitled to wage loss benefits and services beyond March 10, 2006.
Decision: Unanimous
Background
On March 27, 2003 while working as a welder, the worker reported feeling pain in his right lower back and side that occurred when he was lifting steel plates weighing between 100 and 150 lbs. The worker continued to work throughout the day of the injury but over the next few days he reported increased pain and he stopped working on April 9, 2003. The WCB accepted the worker’s claim and benefits commenced on April 9, 2003.
The worker sought medical attention on April 10, 2003. The area of injury was noted as right lower back and the diagnosis given was right lumbar strain facet joint syndrome. The worker was referred to a physiotherapist, who noted complaints of sharp and dull pain in the right lower back and pain with lifting or rotation. The therapist’s diagnosis was a right muscle strain in the lumbo sacral area.
A second physician assessed the worker on April 25, 2003 and gave a diagnosis of lumbar strain. The physician recommended that the worker return to light duties. The worker returned to work but due to increased pain he stopped working on April 30, 2003. He was examined by his physician on May 9, 2003. The physician recommended physiotherapy and that the worker remain off work. Little improvement was noted when assessed again on May 16, 2003 and the worker was referred for chiropractic treatment. The chiropractor assessed the worker on May 25, 2003 and gave a diagnosis of lumbar sprain/strain with restrictions of no heavy lifting or repetitive bending.
An x-ray of the lumbar spine was taken on April 25, 2003. The x-ray noted no disc space narrowing; however, small anterior and lateral osteophytes at multiple levels consistent with degenerative changes were noted as well as slight narrowing and sclerosis of both S.I. joints consistent with osteoarthritis. Chiropractic x-rays taken May 20, 2003 noted “ankylosing of the thoracic spine. Facet asymmetry. Pelvic unleveling with very minor thoraco/lumbar scoliosis.”
The worker continued to experience right sided low back pain in the lumbosacral region. On June 19, 2003 the worker was examined by a WCB chiropractic advisor. The WCB chiropractic advisor was of the opinion that the worker suffered a lumbosacral strain/sprain as a result of the March 27, 2003 injury. Return to light duties was recommended with restrictions of not lifting greater than 20 lbs. and not working in a flexed position with the ability to sit and stand when required.
Medical reports from the treating physician noted ongoing right lumbar pain with no improvement. The worker was referred to a sports medicine specialist who assessed the worker on July 9, 2003. The specialist noted that the worker’s pain is located in the right mid and lower back. He also noted that the x-ray showed mild degenerative changes. The specialist was of the opinion that the worker’s symptoms were secondary to a probable non-specific or mechanical low back pain. The specialist recommended a more focused strengthening program and a return to modified duty work.
In a letter dated September 2, 2003, the worker’s treating physician requested an opinion from another physician specializing in pain treatment. In the September 2, 2003 letter, the worker’s physician notes that he is having extreme difficulty in getting the worker’s mechanical lower back pain to settle and that he doesn’t know why the worker’s symptoms are not resolving. The letter also states that although the physical findings are out of keeping with the worker’s complaints, the worker, whom the physician has known for 10 years, has not been a complaining patient and is not a malingerer.
On September 8, 2003, a WCB medical advisor reviewed the file and noted that over five months time loss for spinal sprain/strain is atypical and that the worker should be back at his pre-accident employment duties. The WCB medical advisor was asked for his opinion as to whether there was evidence of a pre-existing condition which delayed the worker’s recovery. The advisor responded as follows:
“Some radiological evidence of minor spinal degenerative changes, as would be expected given his age. In my opinion this “condition” did not delay recovery.”
The WCB case manager determined that the worker was fit to return to his regular duties and the worker was advised by letter dated September 10, 2003 that his claim would be ending on September 17, 2003.
A medical report dated March 4, 2004 from the pain specialist who had been treating the worker since October 14, 2003 was provided to the WCB by the worker advisor. The pain specialist was of the opinion that the worker’s back pain was directly related to the March 27, 20003 accident. The specialist provided a diagnosis of mechanical low back pain temporally related to the work accident complicated by sleep disturbance and depression related to the pain. He stated that the worker was unable to return to his full-time pre-accident employment due to ongoing pain, fatigue and depressive symptoms. The pain specialist reported improvement in the worker’s mood and sleep problems with medication but that the worker’s back pain was unchanged and a trial of acupuncture produced only temporary results. The specialist advised that the worker would be starting an athletic therapy exercise program at the pain clinic to prepare him for return to full duties.
Further medical testing was requested by the WCB. The worker was examined on July 8, 2004 by a WCB medical advisor. CT scan, MRI and bone scan results were reviewed. In a memorandum to the file dated July 23, 2004, the WCB medical advisor was asked whether there was still a cause and effect between the compensable injury and ongoing symptoms. The medical advisor advised the WCB case manager that the compensable injury was an aggravation of the worker’s mechanical back pain and a graduated return to work plan was recommended with a schedule increasing the worker’s hours to full-time over a 5 week period. The worker’s benefits were reinstated retroactively to September 18, 2003.
Following discussions with the worker and the worker’s employer, the WCB case manager determined that the worker had returned to his pre-accident employment as a welder on a reduced schedule working 5 hours per shift since October 15, 2003. The file notes indicate that the employer was unable to accommodate the worker with modified duties and the worker advised that he was unable to work more than 5 hours a day due to his back pain.
A WCB medical advisor reviewed the file on October 5, 2004. The WCB medical advisor was of the opinion that the compensable injury was an aggravation of the worker’s pre-existing condition which had resolved and any residual complaints were related to the worker’s pre-existing condition.
The worker was advised in a letter dated October 25, 2004, that the WCB case manager was of the opinion that the worker had recovered from the effects of his compensable strain injury and that ongoing problems were related to his pre-existing degenerative changes. The worker was considered fit to increase his hours and return to full-time regular duties effective October 18, 2004, following which no further benefits or medical treatment would be covered. By letter dated December 13, 2004, the worker advisor appealed the decision of the WCB case manager to the Review Office.
The file indicates that a WCB orthopedic consultant was asked to provide the Review Office with an opinion as to the correct diagnosis consistent with the effects of the March 27, 2003 injury. The consultant’s diagnosis of the worker’s injury was a “lower back musculoligamentous strain/sprain”. The consultant was also asked whether the worker has a relevant pre-existing condition. The consultant advised that the worker has “multi-level degenerative disc disease noted on x-ray, bone scan & MRI consistent with age.”
A medical report dated January 5, 2005 from an occupational health physician who examined the worker on December 7, 2004 was provided to the WCB. The occupational health physician stated as follows:
“The principal muscle involved in the injury appears to be the right quadratus lumborum which is shortened and has myofascial trigger activity. I reviewed the CT-Scan reports and am unimpressed with the extent to which disc degeneration is noted and how well it correlates to the positive exam findings relative to his pain. By my assessment, the main injury event was muscle strain, likely right quadratus lumborum with poor recovery due to inadequate release of the back musculature, likely a chronic condition given the nature of his work for the past 37 years.”
On April 12, 2005, the file was reviewed by a WCB physiatrist. The physiatrist’s notes to the file read in part as follows:
“…Initial diagnosis presented by MD of right lumbar strain, facet joint syndrome. However, mechanism suggests muscle strain/disc injury. But no documentation to support disc injury. Physiotherapist entry in file concurred with right sided lumbo-sacral muscle strain….Dr. [referring to the pain specialist] suggests ongoing muscle irritability. Also on file are signs of depression. File review suggests likely a combined effect, mild degenerative involvement, some mechanical symptoms, plus muscle irritability right trunk/low back + a psychological component (depression). His family MD has seen this individual for 10 years prior to accident and did not feel any malingering. File suggests report of ongoing symptoms with no definite cause identified. As above suggest combined effect and cannot rule out some accident component remaining.”
In its decision dated April 12, 2005, the Review Office held that on the balance of probabilities the worker had not recovered from the effects of his compensable injury and was entitled to partial wage loss benefits beyond October 18, 2004.
In reaching its decision, the Review Office accepted the opinion of the WCB orthopedic specialist that the diagnosis consistent with the effects of the injury was low back musculoligamentous strain/sprain. The Review Office also placed significant weight on the statements of the worker’s family physician that the worker was not a complainer or malingerer; on the opinion of the occupational health physician that the main injury event was muscle strain with poor recovery; and on the WCB physiatrist’s opinion that there is likely a combined effect of pre-existing degenerative involvement, mechanical symptoms plus muscle irritability and depression and that some accident component cannot be ruled out. The Review Office directed the WCB to arrange an assessment by the WCB physiatrist and by the pain management unit.
A physiatrist to whom the worker was referred by his treating physician examined the worker on May 24, 2005. In his medical report on file, the physiatrist indicates that there is a significant probability that the worker had myofascial pain affecting the right quadratus lumborum, gluteus minimus and medius and piriformis and that there is a strong probability that the work related incident of March 2003 was the major cause of his present symptoms. A psychologist’s report on file dated May 24, 2005 indicates that the worker does not suffer with depression and that his insomnia is secondary to the pain resulting from his workplace injury.
The worker was examined by a WCB physiatrist on June 7, 2005. The physiatrist noted that there was no evidence to suggest neurological involvement and the investigations have only identified very minor degenerative involvement with no evidence of any significant disc involvement or of any nerve compression or spinal stenosis and no significant bony abnormality. The physiatrist noted that in addition to low back symptoms with minimal tenderness there was significant multi-segmental stiffness in the mid upper lumbar spine, stiffness in the sacroiliac joints, tenderness of the entire lumbar spine with thoracic ankylosis and pain symptoms suggesting inflammatory spondyloarthropathy. A referral was made to a rheumatologist for assessment.
The rheumatologist provided a report dated September 26, 2005 indicating that the worker’s presentation was not consistent with a diagnosis of inflammatory spondyloarthropathy.
On November 9, 2005, the WCB physiatrist was asked to provide a current diagnosis of the worker’s condition and his opinion of whether there continues to be an ongoing cause and effect relationship between the diagnosis and the compensable injury. The physiatrist described the worker’s current diagnosis as follows:
“Multi segmental axial spine stiffness and multilevel degenerative involvement. Subjective back pain, but no evidence of any other diagnoses except (inflammatory involvement) on top of likely pre-existing spine stiffness and degenerative involvement. No evidence that the current symptoms are related to the injury of March 27/03.”
The WCB physiatrist reviewed the file again on February 2 and February 7, 2006 noting that his opinion of November 9, 2005 remained the same.
On February 14, 2006, a medical advisor from the WCB’s pain management unit indicated that the worker did not meet the diagnostic criteria for chronic pain syndrome as the worker’s disability was not proportional in all areas of functioning.
The worker was advised by letter dated March 3, 2006 that the WCB case manager was of the opinion that the worker no longer had a loss of earning capacity and that his ongoing back problems were not related to his back strain that occurred on March 27, 2003. Partial wage loss benefits would therefore be paid to February 20, 2006 inclusive and final.
The worker appealed the WCB case manager’s decision. The worker advisor provided a submission to the Review Office dated June 29, 2006 arguing that the worker has never recovered from the March 27, 2003 injury due the ongoing aggravation of his condition caused by his heavy work duties since returning to work in October 2003.
On July 10, 2006, the Review Office determined that the worker was only entitled to wage loss benefits and services to March 10, 2006, one week after the WCB case manager provided the worker with written reasons for her decision to end benefits. The Review Office stated that it was unable to accept the assertion that the March 27, 2003 compensable injury continued to play any role in the worker’s ongoing symptomatology, given that the accepted diagnosis of the injury was a muscular strain.
On August 11, 2006, the worker advisor appealed the Review Office’s decision and a hearing took place on November 23, 2006. Following the hearing, the panel requested information from the worker’s physiatrist. On January 16, 2007, all interested parties were provided with copies of two reports dated October 11, 2005 and May 24, 2005 provided by the physiatrist and comments were requested. A response was received from the worker advisor dated January 26, 2007. On February 2, 2007, the panel met to discuss the case.
Reasons
This 57 year old worker suffered a lower back lumbar strain while lifting heavy metal plates on March 27, 2003. The medical evidence indicates the existence of a pre-existing condition, namely, degenerative changes in the worker’s back consistent with age. The issue before this panel is whether or not the worker’s loss of earning capacity is attributable to the compensable workplace injury or to his pre-existing condition or to the relationship between them.
In reaching its decision, the panel has considered WCB Policy 44.10.20.10, the relevant sections of which read as follows:
1. WAGE LOSS ELIGIBLITY
(a) Where a worker’s loss of earning capacity is caused in part by a compensable accident and in part by a non compensable pre-existing condition, or the relationship between them, the Worker’s Compensation board will accept responsibility for the full injurious result of the accident.
(b) Where a worker has:
1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and
2) the pre-existing condition has not been enhanced as a result of an accident arising out of and in the course of the employment, and
3) the pre-existing condition is not a compensable condition,
the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.
For the reasons listed below, the panel finds that the worker has not recovered from his compensable workplace injury and is entitled to wage loss benefits beyond March 10, 2006.
Worker’s Position
The worker attended the hearing with his worker advisor. The worker advisor referred the panel to the worksite assessment that had been conducted by the WCB rehabilitation specialist on September 8, 2005 to review the physical demands of the worker’s job duties. The worksite assessment concluded that the custom welding regularly performed by the worker required heavy lifting, bending, twisting, reaching and crouching that aggravated the worker’s low back symptoms. The worker advisor argued that the worker has not had a chance to recover from his workplace injury due to the ongoing aggravation to his back caused by his work duties.
At the hearing the worker testified that he had not had any back problems that had prevented him from working prior to the injury that occurred on March 27, 2003. He explained that the accident occurred when he and a co-worker were pulling a 6 foot by 20 foot piece of steel that they were feeding into a roller to shape into a pipe. The worker testified that he felt a sharp pain in his lower back on the right side. He was able to finish work that day, but when he returned to work the following day, he experienced sharp shooting pain in his back when he tried to work. His back progressively worsened and he stopped working from April 30th to October 15, 2003. He testified that the physiotherapy and chiropractic treatments he received during this time had limited effect on improving his back. When he received a letter from the company advising that it was necessary for him to return to work if he wished to maintain employment, he returned to his previous duties starting at 3 hours and working up to 5 hours per shift.
The worker explained that from the time he returned to work in October 2003, he experienced sharp pain and increasing tightness in the same area of his lower right back where he was initially injured. He indicated that his job does not allow him to sit, that he tries to rest and lift his legs and that he takes 6 Tylenol #3’s a day to relieve the pain, but after five hours his back is too sore to continue. He testified ice and exercise relax his back and it usually feels better by the next morning, but the pain returns in the same location when he works. Once or twice a month, the pain does not improve overnight and he has to remain off work for the day.
The worker testified that at one point the employer had indicated the possibility of training him to use a different welding technology (referred to as “TIG” welding) and to providing lighter duties in a supervisory position, but that neither of these changes had occurred.
Employer’s Position
The employer was represented at the hearing by one of its employees. The representative did not take a position at the appeal hearing. He indicated that he would be willing to answer questions.
The representative was asked about the employer’s ability to accommodate the worker with lighter duties. The representative explained that TIG welding technology requires bending, stretching and lower back mobility that would likely not benefit the worker. He also explained that the employer would like to accommodate the worker with lighter duties, but they did not have the ability to do so. In closing, the employer representative testified that he has known the worker for a number of years and “he’s a very diligent employee and a good and honourable person.”
Analysis
The panel has considered all the evidence including the evidence on file and the evidence provided at the hearing. The panel finds, on a balance of probabilities that the worker has not recovered from the low back muscle strain that he suffered on March 27, 2003 due to the ongoing nature of his heavy work duties.
The panel notes that the worker’s initial symptoms of back pain occurred in his right lower back area and that the worker has continued to complain of back pain in the same area as the cause of his inability to work more than five hours per shift. The medical evidence has consistently referred to complaints of pain and soreness in the same lumbosacral region extending to the right with tenderness in the right quadratus lumborum muscle group.
When the worker was examined by the sports medicine specialist in July 2003, the physician noted tenderness throughout the lower lumbosacral spine in addition to the right quadratus lumborum and the right paraspinal musculature.
In the report of the occupational health physician dated January 5, 2005, the physician notes tenderness in the worker’s right quadratus lumborum muscle. The occupational health physician is of the opinion that the worker’s right sided lumbar pain is most likely caused by injury to his right quadratus lumborum muscle and that the muscle strain in this area has not recovered due to the worker’s ongoing work duties.
In the report of the physiatrist dated May 24, 2005, the physiatrist notes that the worker is very tender over the right quadratus lumborum muscle. The physiatrist was of the opinion that there was a strong probability that the workplace injury was the major cause of the worker’s present symptoms. During the period of August to October 2005, the worker was treated by the physiatrist with needling in the low back area and over the quadratus lumborum muscle on the right. The physiatrist notes in his report dated October 11, 2005 some initial improvement in the worker’s low back pain; however, the physical demands of his work as a welder aggravate the pain.
The panel also notes that in April 2005, the WCB physiatrist was of the opinion that the worker continued to suffer from muscle irritability in the right low back area and that the worker’s symptoms were at least in part related to the workplace injury. While the examination of the worker on June 7, 2005 notes tenderness and stiffness over the worker’s entire spine, which the WCB physiatrist notes is not related to the muscle strain in the lower back, he continues to indicate that the worker has tenderness in his quadratus lumborum muscle, which has not been effectively treated. In his meeting with the pain management unit on July 21, 2005, the WCB physiatrist indicates concern that the worker’s heavy duties will aggravate his back.
With respect to the medical evidence of degenerative changes in the worker’s back, the occupational health physician who examined the worker on December 7, 2004 was of the opinion that the worker’s pain symptoms in his lower back were attributable to the muscle strain in the right quadratus lumborum muscle and not to disc degeneration.
The panel notes that in April 2005 the WCB physiatrist was of the opinion that despite mild degenerative changes there continued to be a component of muscle irritability and mechanical symptoms in the worker’s right low back area that were related to the workplace injury. In June 2005, his notes indicate that the worker’s symptoms continue to involve a component of the work-related muscle strain. The WCB physiatrist’s comments in November 2005 that the worker has multi-level degenerative involvement that is delaying recovery refer to the wide range of stiffness noted across the worker’s whole spine, which cannot be explained by the workplace injury. The physiatrist comments on the effect of worker’s pre-existing degenerative condition do not address the ongoing complaints related specifically to the lower right back area and the reason for the continuing presence of irritability and tenderness in that area. In the right lower back area, the panel notes that the medical evidence consistently refers to the existence of an ongoing muscle strain related to the workplace injury.
The panel also notes that the evidence of the worker and the site assessment performed by the WCB rehabilitation specialist indicate that the work regularly performed by the worker requires heavy lifting, bending, twisting and reaching and that these activities aggravate the worker’s low back area. The worker, who was described by the employer’s representative as diligent and honourable, testified that since returning to work he has continued to suffer low back pain in the same area as the initial injury brought on by performing his work duties.
The panel finds, on the balance of probabilities, that the worker’s ongoing complaints of lower right back pain are causally related to the initial workplace injury. The panel finds that the worker has not recovered from his compensable workplace injury due to the continuous overloading and aggravation of this area of his back caused by his daily workplace activities and his workplace injury is therefore continuing to contribute to a material degree to his loss of earning capacity. We therefore allow the appeal and find that the worker is entitled to wage loss benefits and services beyond March 10, 2006.Panel Members
M. Thow, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
M. Thow - Presiding Officer
Signed at Winnipeg this 22nd day of March, 2007