Decision #52/07 - Type: Workers Compensation
Preamble
This case deals with the worker’s appeal for wage loss benefits beyond January 6, 2003. The worker was injured in August 2000. His claim for benefits was initially denied but subsequently was accepted. He was provided wage loss benefits by the Workers Compensation Board (WCB) until January 6, 2003 at which time he was considered capable of returning to his pre-accident employment. The worker appealed to Review Office which found that the evidence did not support a finding that the worker had a loss of earning capacity related to this workplace injury. The worker then appealed to the Appeal Commission.
A hearing was held on February 19, 2007, at the request of a worker advisor, acting on behalf of the worker. The panel discussed this appeal following the hearing.
Issue
Whether or not the worker is entitled to wage loss benefits beyond January 6, 2003.Decision
That the worker is not entitled to wage loss benefits beyond January 6, 2003.Decision: Unanimous
Background
On August 19, 2000, the worker injured his back region during the course of his employment as a healthcare aide. Initial medical reports diagnosed the worker’s condition as sciatica and a disc herniation of the L5-S1 level on the right. The claim was initially denied by primary adjudication due to the worker’s delay in reporting his accident to the employer. The decision to deny the claim was overturned by an appeal panel on January 30, 2002 under Order No. 12/02 and compensation benefits were paid to the worker.
A review of medical documentation revealed that the worker was treated by a physical medicine specialist (a physiatrist) and by a neurologist. On November 30, 2001, an MRI of the spine revealed a shallow broad-based right paracentral disc herniation at the L5-S1 level. This was in contact with the right S1 nerve root.
On January 3, 2002, the treating neurologist noted that the worker continued to complain of pain in the right lumbosacral area down the posterolateral aspect of his right leg including the thigh and calf. Because of his symptomatic right leg, a referral to a neurosurgeon was arranged.
On April 16, 2002, the treating physiatrist stated that the worker’s history was still suggestive of a right sided sciatica but his clinical signs did not equate to the history. Medication was prescribed to reduce the worker’s pain and a repeat CT scan and MRI was ordered.
The worker was examined by a neurosurgeon in May 2002. He found no evidence of weakness, and straight leg raising was full and reflexes were equal. Surgery was not warranted according to the specialist.
A CT scan report of the lumbosacral spine dated June 21, 2002 showed a small partially calcified right posterior L5-S1 disc herniation. “In retrospect the small herniation was present on the preceding study, and has not changed appreciably.”
On September 30, 2002, the physiatrist reported that the worker had decreased lumbar flexion, right straight leg raising was unremarkable with no neurological signs. He felt the worker could return to work in a graduated sense but the worker did not agree.
A WCB medical advisor reviewed the file on November 13, 2002. He suggested that the worker could gradually return to full time duties once he underwent a reconditioning program.
On December 6, 2002, the worker was advised by his WCB case manager that following the completion of his reconditioning program which was to run between November 26, 2002 and December 30, 2002, he would be considered capable of performing his pre-accident duties. As such, wage loss benefits would be paid to January 6, 2003 inclusive and final.
A report was then received from the treating physiatrist dated January 27, 2003. He reported that the worker had persistent low back pain which radiated to his right leg. He noted that the worker left physiotherapy with more pain at the lumbosacral junction. The specialist did not feel there were any acute signs of nerve entrapment.
In November 2005, the worker appealed the WCB’s decision dated December 6, 2002 on the grounds that he was still experiencing ongoing back difficulties and was seeing doctors in this regard. On January 4, 2006, the worker told his WCB adjudicator that he was claiming wage loss benefits and medical expenses for the period of time he has been unable to work. He said his back condition was worse than before which he felt was related to the physiotherapy treatment he attended in 2002. He did not incur any new injuries or accidents.
Primary adjudication then obtained additional medical reports along with laboratory test results. In a report dated November 7, 2005, the family physician reported that the worker remained with a sore low back and had pain in his right lower limb with tingling and numbness. These symptoms rendered him unable to lift more than 10 lbs. She stated that the worker was unable to do full bending or climb stairs and that walking more than one block or driving more than 15 – 20 minutes aggravated his symptoms. She felt that the worker was totally disabled and could not be gainfully engaged in an occupation.
In a report dated June 6, 2005, the physiatrist stated that he did not have a significant diagnosis as to why the worker was having excruciating pain and thought it was probably a fibromyalgia syndrome.
The worker was examined by a WCB medical advisor on February 28, 2006 which included a review of the medical reports on file. He concluded that the worker’s current clinical examination did not suggest any lumbosacral nerve root involvement.
The worker was advised by his case manager on April 19, 2006, that he was considered to be recovered from his compensable injury and that he no longer had a loss of earning capacity related to the compensable injury. The worker disagreed with the decision and the case was forwarded to Review Office.
Prior to considering the worker’s appeal, Review Office consulted with a WCB orthopaedic consultant. The consultant outlined his opinion that the diagnosis of the August 19, 2000 compensable injury was a lumbosacral disc protrusion with no associated neurological signs occurring in a degenerative disc. He said the medical evidence on file up to January 2003 supported that the worker was capable of performing his regular pre-accident duties following his reconditioning program.
In a decision dated July 4, 2006, Review Office determined that the worker was not entitled to wage loss benefits beyond January 6, 2003. Review Office was of the opinion that the evidence on file confirmed the diagnosis of an L5-S1 disc protrusion with no nerve root entrapment and with the time that had passed, subjective complaints of pain and deceased range of movement that were not consistent with the objective findings supported that the worker no longer had a loss of earning capacity related to his compensable injury.
On January 11, 2007, the Appeal Commission received the worker’s Application to Appeal with respect to Review Office’s July 4, 2006 decision and a hearing was arranged.
Reasons
Worker’s Position
The worker attended the hearing with a worker advisor who made a submission in support of the appeal. The worker answered questions posed by his representative and the panel.
The worker advised that in his job as a healthcare aide at a nursing home, he was responsible for getting 14 residents up in the morning and transporting them to the dining room for breakfast and lunch. He advised that he injured himself attempting to prevent a resident from falling. He said that he had pain in his low back down to his right leg and down the leg to his toe.
With respect to a reconditioning program arranged by the WCB in November and December 2002, the worker advised that it helped with strength but the pain continued. The worker advised that he did not return to work as he needed restrictions and his employer could not accommodate the restrictions. The worker did not return to his pre-accident work and ultimately resigned the position and has been in receipt of a pension since June 2003.
The worker then worked at a printing company on a part time basis. This employer allowed the worker to work within his restrictions. The worker stopped working at this position in July 2005. Since he stopped working, his back has improved “a bit”.
The worker advised that he has been referred to a pain clinic but has not received an appointment yet.
The worker’s representative noted the worker’s evidence that his symptoms relating to the pain and numbness of his right leg and low back have not improved since the workplace injury. He advised that it is the worker’s position that when the WCB terminated his benefits in January 2003, the worker was not capable of resuming his pre-accident duties as a healthcare aide. He advised that the worker does not feel that the reconditioning program was sufficient to get the worker back to work.
The representative noted that a physiotherapist commented upon completion of the reconditioning program that the worker should be able to resume his regular employment yet the treating physician reported continued pain.
The representative reviewed the diagnostic tests on the file. He noted in particular the findings of a CT scan in June 2002 which noted a disc herniation and a small osteophyte. The report indicates that the calcium in the osteophyte has developed since the last test. The representative queried whether the development of the calcification arose as a result of the August 2000 workplace accident. He stated that “The fact that the calcium developed only at the L5-S1 area and that this was the area affected by the compensable accident, leads us to suspect that the compensable accident was responsible for its development.” He stated that if the calcification was due solely to the degenerative process, he would not have expected that in one and a half years between the 2002 CT scan and the 2003 CT scan, there would have been more calcification in the L5-S1 area.
The representative submitted that the worker is entitled to wage loss benefits beyond January 2003.
Analysis
The issue before the panel was whether the worker is entitled to wage loss benefits beyond January 6, 2003. For the appeal to be successful, the panel must find that the worker’s loss of earning capacity after this date was caused by the workplace injury. In other words, the panel must find that the worker’s inability to work was caused by the workplace injury. The panel was not able to reach this conclusion.
After considering all the evidence on the file, and particularly the medical evidence, the panel is unable to find a relationship between the worker’s condition in January 2003 and the workplace injury. The panel is further unable to find that the worker’s loss of earning capacity in January 2003 is related to the August 2000 workplace injury. The panel finds, on a balance of probabilities, that the worker is not entitled to wage loss benefits beyond January 6, 2003.
The panel notes there is radiographic evidence of a L5-S1 disc protrusion but that the clinical evidence provided by the various medical practitioners involved in this case, does not support nerve root involvement. The panel is therefore unable to relate the worker’s symptoms in 2003 and current symptoms to the disc protrusion and to the workplace injury. The panel relies upon the following medical evidence:
- opinion of the treating physiatrist dated January 22, 2003 which reports there are no acute signs of nerve entrapment.
- report of the WCB physical medicine specialist who examined the worker on February 28, 2006 and noted that the clinical examination did not suggest any lumbosacral nerve root involvement. The specialist also noted inconsistencies on examination.
- opinion of WCB Review Office orthopedic consultant of June 29, 2006 that the diagnosis for the workplace injury was a lumbosacral disc protrusion with no associated neurological signs. The consultant also commented that the file evidence does not suggest that the worker was incapable of performing his pre-accident duties following the completion of his reconditioning program in December 2002.
The panel notes that other diagnoses have been suggested. A neurologist suggested in a report dated November 17, 2005 that the “…majority of his pain however seems to be mechanical and arthritic in nature, involving the lower back and the neck.” The panel also notes the comments of the treating physiatrist dated June 6, 2005 that “I really don’t have a significant diagnosis though to tell you why he has this much pain. I think it probably is fibromyalgia syndrome.”
The panel is unable to identify a condition or injury which resulted from the August 2000 workplace injury that later prevented the worker from returning to work in January 2003.
Finally, the panel notes the theory advanced by the worker’s advocate that the change in calcification noted in CT scans is caused by the workplace injury. The panel finds that the medical evidence on the claim file does not support this theory.
The 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 16th day of April, 2007