Decision #71/07 - Type: Workers Compensation
Preamble
This appeal deals with whether the worker’s ongoing symptoms are related to his workplace injury. The worker suffered a back injury in June 2003. The Workers Compensation Board (WCB) accepted his claim and paid the worker wage loss benefits until April 2004. The WCB case manager found there was no anatomical explanation for the worker’s symptoms relative to the workplace injury. The Review Office found that the worker had initially sustained a strain injury. It found there were no clinical findings to relate the worker’s continuing symptoms to the workplace accident of June 2003. The worker appealed to the Appeal Commission and a hearing was held on October 19, 2005. He was represented by a worker advisor. The Panel discussed this appeal on several occasions, the last one being April 10, 2007.Issue
Whether or not the worker has recovered from the effects of the workplace injury; and
Whether or not the worker is entitled to wage loss benefits after April 20, 2004.
Decision
That the worker has recovered from the effects of the workplace injury; and
That the worker is not entitled to wage loss benefits after April 20, 2004.
Decision: Unanimous
Background
On July 17, 2003, the worker filed a claim with the WCB for sudden back pain that occurred on June 24, 2003 while operating a chop saw during his normal work activities as a sawmill worker.
The worker attended his family physician for treatment on June 24, 2003. The worker’s subjective complaints were left sided back pain, worse with sitting and weakness in the hips.
Examination revealed tenderness in the left flank area. Neurological examination was normal and back range of motion was okay. The diagnosis rendered was a muscle strain left lumbar area. The claim for compensation was accepted and wage loss benefits were paid to the worker commencing June 25, 2003.
On September 2, 2003, a CT scan of the lumbar spine showed a shallow central disc protrusion at L5-S1 with facet arthropathy.
On September 22, 2003, the worker advised a WCB physiotherapy consultant during a call in examination that he had not worked since his injury and that his paraesthesia, altered gait and other leg symptoms did not occur for almost a month after the injury. He was unable to provide an anatomical reason for this given the normal CT and x-ray examinations. Following the assessment, the physiotherapy consultant was unable to relate the worker’s symptoms to the mechanism of injury which appeared to have been a back strain.
On September 26, 2003, an orthopaedic specialist examined the worker at the request of the family physician. Following the examination, the specialist diagnosed the worker’s condition as a disc injury secondary to lifting boards at work. He said there was no disc herniation or spinal stenosis requiring surgery. The treatment plan included anti-inflammatory medication, muscle relaxants and physiotherapy. The specialist felt the worker was unable to return to his previous job.
The case was then reviewed by a WCB medical advisor on October 8, 2003. After considering the clinical findings reported by the treating orthopaedic specialist, he found no evidence to conclude that the worker was still suffering from the effects of his compensable injury. He felt the worker was fit to return to work with restrictions and that a corset would help for 2 to 3 months but should not be considered long term.
In a progress report dated November 3, 2003, the treating physician noted that the worker experienced increased back and buttock pain after a trial of a return to work and that he had tenderness in the L5 region and decreased range of motion. He felt the worker was not recovered and was not capable of alternate or modified work.
The worker was again seen by his orthopaedic specialist on February 3, 2004. He reported that the worker continued to have mechanical low back pain secondary to an L5-S1 disc protrusion that was related to his work. Physical examination showed that the worker could bend forward and touch his ankles. He had constant lower back pain. It stated again that surgery would not benefit the worker and that he should continue with non surgical treatment and look for alternate work at lighter duties.
Following an examination of the worker on March 11, 2004, a WCB medical advisor stated there was no anatomical explanation that would account for the worker’s ongoing symptoms relative to his compensable injury this many months after the work event. He felt the worker was deconditioned and pain-focused. He stated that theoretically, there was no need for any ongoing restrictions related to the compensable injury.
In a decision dated April 13, 2004, the worker was advised by his case manager that based on a thorough review of all the medical information, the WCB would not accept further responsibility for his claim or wage loss benefits as of April 20, 2004. The case manager was of the view that there was no anatomical explanation that would account for the worker’s ongoing symptoms relative to the compensable injury.
The worker was seen by the orthopaedic specialist again on April 27, 2004. He advised the family physician that there has been no change in the worker’s back pain. He stated that while he was not of the opinion that the worker may have spinal stenosis or a disc herniation that was surgical, he thought that a second opinion would be worthwhile.
On October 14, 2004, the worker was seen by an occupational health physician who made the following comments: “There is continuity of his ongoing symptoms and back restrictions to the June 2003 work injury. The older radiographic findings of Scheuermann’s disease at T12-L1, L2 have no relation to the injury and the ongoing injury related symptoms in his lumbosacral back. He has not recovered from his injury condition and would be unable to return to his former work as a sawmill labourer. Due to his injury he is no longer suited for heavy lifting and repetitive manual work. He is young and there remains considerable pain impairments affecting daily activities and prospects of finding employment.” Further investigations were recommended which included an MRI evaluation and assessment for epidural cortisone injections.
On November 13, 2004, a WCB medical advisor reviewed the information on file and stated that the occupational health physician provided no new objective evidence to change the previous healthcare opinion. The worker had reasonable range of motion, no evidence of dural tension and normal sensation. The medical advisor noted that the worker had lumbar back pain starting in June 2003 from “just doing the normal days shift work.” The diagnosis was a strain. There had been no objective findings reported to suggest it was ever anything other than a strain. The effects of a strain should have long since resolved. She could not relate the worker’s ongoing pain to the diagnosis of a strain or to his compensable injury.
In a decision dated November 16, 2004, the case manager advised the worker that no change would be made to its earlier decision of April 13, 2004. On November 25, 2004, the worker appealed the decisions of April 13, 2004 and November 16, 2004 to Review Office.
On January 6, 2005, a WCB orthopaedic consultant was asked to review the file information and to answer specific questions posed by Review Office. With regard to the working diagnosis for the compensable injury of June 24, 2003, the orthopaedic consultant stated that it was discogenic back pain with no significant nerve root compromise, i.e. neurological involvement. He stated there was no relevant pre-existing condition. There was loss of vertebral height at T11-T12 possibly due to old healed compression fractures. The orthopaedic consultant felt that an MRI would not help clarify or delineate compensability of the worker’s complaints and that the worker did not have a ‘surgical’ problem.
An MRI of the lumbar spine dated January 25, 2005 was negative for disc herniation and there were no significant central canal stenosis or neural foraminal compromise.
In a decision dated March 3, 2005, Review Office confirmed that the worker was not entitled to wage loss benefits after April 20, 2004. After review of all the file information, Review Office could find no clinical findings to relate the worker’s continuing symptoms and related disability to the June 23, 2003 workplace injury. On June 28, 2005, a worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing later took place on October 19, 2005.
Following the hearing, the appeal panel met on several occasions to discuss the case and it requested additional medical information from the worker’s treating physicians. At a meeting held on April 12, 2006, the panel requested the convening of a Medical Review Panel (MRP) under subsection 67(3) of The Workers Compensation Act (the Act). At a further meeting on January 22, 2007, the panel referred the case back to the MRP to provide rationale for their answers to question two of its report dated November 30, 2006. On April 10, 2007, the panel met again and rendered its final decision.
Reasons
Applicable Legislation
Subsection 39(2) of the Act provides that the WCB will pay benefits until such a time as the worker’s loss of earning capacity ends. In determining the issues before it, the panel must decide whether the worker’s loss of earning capacity after April 20, 2004 is related to his workplace injury.
Worker’s Position
The worker attended the hearing with a worker advisor who made a presentation on behalf of the worker. The worker answered questions posed by the worker advisor and panel.
The worker advised that although he had a prior injury approximately nine years before the current injury, he had recovered from the prior injury. He described the incident that he believed caused his June 2003 injury. He said that he was working with eight and twelve foot boards. Some of the boards were 50 to 150 pounds. As he lifted one, he noted that he was getting weakness in his hips. He did not have any pain. He had no symptoms again until June 24, 2003 when he was working on the chop saw and experienced back pain, which worsened to the point that he had to go to the hospital or clinic. He said the pain was in the lower part of his back.
In answer to questions from the panel, the worker described his recent medical treatments, current medications, current symptoms and activities. He advised that he has looked for work but that there is not much work in his area.
The worker advisor noted a report from an orthopedic surgeon, dated August 2, 2005, which indicated that the worker had not recovered from the effects of his workplace injury. The physician commented that the worker suffered more than a muscular strain. The worker advisor also referred to the report of an occupational medicine physician, dated October 14, 2004 which noted the continuity of the worker’s symptoms and back restrictions to the workplace injury. The physician commented that the worker had not recovered from his injury and would be unable to return to his prior job.
The worker advisor submitted that these reports support the worker’s position that he has not recovered from the effects of his June 24, 2003 workplace injury.
In April 2007, the worker also provided a written submission in response to the MRP report. He advised that he was injured and has not had a pain free day since the injury. He stated that his pain started with the workplace injury.
Employer’s Position
The employer attended the hearing. He expressed concern that two years have passed since the injury and there has not been much improvement. He stated that he does not believe the worker has recovered. He also stated that the worker should be receiving compensation and should be re-trained.
Analysis
The issues before the panel are whether the worker has recovered from the effects of the workplace injury and whether the worker is entitled to wage loss benefits after April 20, 2004.
The panel notes that the worker has had a variety of symptoms, seen a variety of physicians, received different treatments and underwent various tests but no uniform diagnosis was evident. To assist the panel in understanding the worker’s medical condition and its relationship to the compensable injury, the panel directed that an MRP be convened. The MRP consisting of a chair and two orthopedic specialists met on November 8, 2006. At that time the MRP members interviewed and examined the worker. The MRP was asked two questions and gave the following answers:
“Question 1:
What is the most probable diagnosis of [the worker’s] current low back condition? What medical evidence supports the diagnosis?
Answer:
Chronic low back strain. This history, particularly, the part relating to pain with movement and also the limited range of movement supports this diagnosis. The physical examination, while revealing slow, at times limited and somewhat painful movement, revealed no suggestion of neurological/dural/stretch signs. In particular the evidence provided by the MRI and the CT scan which are both judged to be completely normal supports this diagnosis.
Question 2:
Is [the worker’s] current low back condition due to his workplace injury of June 24, 2003? If yes, please explain the ongoing causal relationship and the reasons for the persistence of his symptoms.
Answer:
No.
The Panel took the opportunity to suggest to the worker that he consider a program of weight reduction and increased physical activity and also a program of weaning from the various medications which he is currently taking.”
The panel subsequently asked the MRP to clarify the answer to the second question. The MRP responded:
“1. The worker has a previous (1996) history of back injury and pain which resulted in him being off work for more than six months. Subsequent to that he was off for approximately an additional six months which resulted in him being away from his regular heavy work for at least one year. This probably resulted in some deconditioning which could be a factor in the subsequent development of chronic low back strain.
2. Currently [the worker] is, and apparently has been for some time, very much overweight and this is likely to be a contributing factor to his back pain.
3. The variability of diagnoses expressed by different physicians and other healthcare providers at different times following the work related event, as well as the lack of imaging evidence of abnormality, lead to the conclusion that the worker’s back complaints are not due to the compensable injury.
4. The Panel was of the opinion that the worker suffers from chronic low back strain.”
In answer to the first issue, the panel has reviewed all the medical evidence on the file, and ultimately accepts and relies upon the opinion of the MRP and finds, on a balance of probabilities, that the worker has recovered from the effects of the workplace injury by April 20, 2004. The panel prefers the opinion of the MRP as it had the opportunity to review all prior medical evidence, including reports from the treating physicians, and examined the worker. Consistent with the panel’s decision on the first issue, the panel finds that the worker is not entitled to wage loss benefits after April 20, 2004.
The appeal is denied.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 30th day of May, 2007