Decision #86/07 - Type: Workers Compensation
Preamble
This appeal deals with the relationship between the worker’s workplace injury and symptoms beyond January 10, 2003. The worker, a custodian, injured his back and right hip on August 1, 2002, when he fell while waxing a floor. He applied to the Workers Compensation Board (WCB) and his claim was approved. He was provided with benefits until January 10, 2003. The WCB refused to provide benefits after this date, as it found the worker had recovered from the August 2002 workplace injury. The worker appealed to Review Office which upheld the WCB’s decision. He then appealed to the Appeal Commission, seeking restoration of benefits beyond January 10, 2003.
A hearing was held on July 19, 2006 at the request of a worker advisor, acting on behalf of the worker. The panel discussed the case on July 19, 2006 and again on May 23, 2007.
Issue
Whether or not the worker is entitled to compensation benefits and services beyond January 10, 2003.Decision
That the worker is not entitled to compensation benefits and services beyond January 10, 2003.Decision: Unanimous
Background
The worker was putting water on floors to strip wax on August 1, 2002 when he slipped and landed onto his right side and back. Following the accident, the worker was treated by a chiropractor, a physician and a physiotherapist. The diagnoses rendered were a lumbosacral strain/sprain, a lumbar and right hip strain and a lumbosacral sprain/strain respectively. The claim was accepted by the WCB and benefits were paid to the worker commencing August 5, 2002.
On October 1, 2002, the worker was seen by a sports medicine specialist. The worker complained of mid back pain with radiation to the left and right with no lower extremity radiation. The specialist concluded that the worker’s signs and symptoms were likely secondary to mechanical back pain and that a graduated return to work program should be entertained in the next couple of weeks.
At the request of the treating physiotherapist, the worker was examined by a WCB physiotherapy consultant on October 28, 2002. He recommended that the worker return to physiotherapy for a four week reconditioning program based on the diagnosis of a resolving back strain. Upon completion of the program, it was felt the worker could return to work on a graduated basis starting at three hours a day and increasing an hour a week until he was back to working full time hours.
The worker attended a reconditioning program between November 5 and December 6, 2002. In the final report dated December 6, 2002, the treating physiotherapist indicated that there was minimal objective findings and significant differences in demonstrated and perceived function. He felt the worker to be pain focused. The physiotherapist supported the return to work plan commencing at three hours per day.
Between December 9, 2002 and January 10, 2003, the worker participated in a graduated return to work program and was back to his full time regular duties by January 13, 2003. On January 13, 2003, the worker told a WCB case manager that he was always in pain but was trying to work through it.
In late March 2003, the worker advised the WCB that he was still having problems with his back. On April 9, 2003, the worker advised that he had not been involved in any new accidents at work. He used a scrubber at work to wash the floors each shift and every night he was in so much pain that he could barely walk to his car at the end of his shift. He took medication to reduce the pain but the pain does not go away.
Subsequent medical reports revealed that the worker underwent a CT scan on March 24, 2003. The results revealed a very minor broad disc bulging at L4-L5 without evidence of a focal disc herniation, nerve root compression or spinal stenosis. At L5-S1 there was no evidence of a focal disc herniation, nerve root compression or spinal stenosis.
On May 5, 2003, the sports medicine specialist indicated that the worker had tenderness in his right low back and hip. In a follow up report dated August 11, 2003, the specialist diagnosed the worker with mechanical back pain and questioned facet osteoarthritis.
In a May 8, 2003 report, the family physician indicated that the worker was seen on April 23, 2003 and his entrance complaints were severe constant pain in his low back as well as numbness in his hands and feet. When seen again on May 6, 2003, the worker’s back pain had gotten worse and he was off work as of May 5, 2003.
In a report from the treating chiropractor dated May 9, 2003, the worker had subjective complaints of continuing low back pain, left greater than right.
On June 6, 2003, it was determined by a WCB case manager that no responsibility was being accepted for the worker’s medical treatment or time loss beyond January 2003. Following consultation with a WCB medical advisor on June 4, 2003, the case manager concluded that the worker’s current disability was the result of an underlying pre-existing condition, the progression of which was not enhanced or accelerated by an accident at work.
Following the June 6, 2003 decision, the WCB received reports from the treating physician which supported the position that the compensable accident enhanced the worker’s facet arthropathy and that the worker went back to work even though he had not completely recovered from his compensable injury. Reports were also submitted from a physical medicine and rehabilitation specialist who diagnosed the worker’s condition as mechanical low back pain. He also outlined the opinion that the worker did not have any pre-existing symptoms related to his back and that there appeared to be a reasonable cause and effect relationship between the worker’s symptoms and his fall in 2002. He felt the CT scan finding of mild multi-level facet joint arthropathy was a relatively normal finding in a 44 year old individual (report dated April 19, 2004).
On June 17, 2004, following consultation with a WCB medical advisor, the WCB case manager advised the worker that no change would be made to the June 6, 2003 decision. It was still felt that the worker had recovered from the effects of his August 1, 2002 work injury and his ongoing complaints were due solely to a pre-existing condition. This decision was appealed by a worker advisor on July 12, 2004 to Review Office.
Prior to considering the worker’s appeal, Review Office referred the case to a WCB orthopaedic consultant for an opinion. On July 20, 2004, the orthopaedic consultant stated the worker had pre-existing multilevel osteoarthritic facet joints noted on CT and MRI. “One such incident as described would not enhance this condition. It might be temporarily aggravated and prolong the recovery. The ongoing problem is mechanical LBP [low back pain] due to OA [osteoarthritis]. There has been no pathology identified that would explain “radicular” symptoms re referred pain into the leg.”
On August 27, 2004, Review Office ultimately determined that the worker was not entitled to wage loss benefits and services beyond January 10, 2003 as it felt that the worker had recovered from the compensable injury to the point that it was no longer contributing, to a material degree, to a loss of earning capacity.
At the worker advisor’s request, the case was again considered by Review Office on January 1, 2005 and it confirmed its decision of August 27, 2004. Review Office stated, “This decision is based on the fact that this worker’s initial diagnosis following this injury was for a soft tissue sprain/strain to his lower back and right hip. The description, ‘mechanical low back pain’, is a diagnosis used ‘when a definitive tissue specific diagnosis is not apparent’. Although the physical medicine and rehabilitation physician stated, ‘Based on the history provided, this problem began after his fall and is not due to another problem’, the history provided in that letter also indicated that the worker described many incidents causing increased pain since the initial soft tissue strain/sprain of August 1, 2002.” On March 28, 2006, the worker advisor appealed Review Office’s decision and a hearing was held on July 19, 2006.
Following the hearing, the appeal panel requested additional information from two physicians who provided treatment to the worker. On May 4, 2007, the additional information from the two physicians was forwarded to the interested parties for comment. On May 23, 2007, the panel met to render its final decision and considered a submission by the worker advisor dated May 9, 2007.
Reasons
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the Act), regulations and policies of the Board of Directors. In accordance with subsection 39(2) of the Act wage loss benefits are payable until such a time as the worker’s loss of earning capacity ends, as determined by the WCB.
Worker’s Position and Evidence at Hearing
The worker was represented by a worker advisor who made a presentation on his behalf. The worker answered questions posed by his representative and the panel.
The worker’s representative asked the panel to find that the WCB is still responsible for the worker’s ongoing back difficulties. He stated that the worker’s problems are not solely related to the pre-existing condition and that the WCB should accept responsibility for wage loss until his loss of earning capacity regarding his back has ended. In support of this position, the representative noted various medical reports from treating physicians and specialists, including an April 19, 2004 report by a treating physiatrist who commented “Based upon the history that he provided, including a strong temporal relationship between the workplace injury and his continued symptoms, there would appear to be a reasonable cause and effect relationship between his symptoms and the fall in 2002.” The representative submitted that in addition to suffering from degenerative facet arthropathy, the worker has also been suffering from myofascial symptoms caused by the workplace accident.
The worker described the August 2002 accident and the pain he felt at the time. He described the pain as “…a stab in my right hip and in my lower back joints…”. He advised that he completed work on that day and returned the next day to complete the job he had been working on and then relaxed for the balance of the day.
The worker’s representative noted that the worker had attempted a return to work after January 10, 2003 but by May 2003 he was unable to continue working. He submitted that the worker “…fell, he injured his back, his back never recovered…he returns to work and then it starts to decrease again.”
The worker was asked what took him off work in May 2003. He replied it was the progression of the pain which would not go away. He agreed that his condition worsened after that date.
The worker described more recent medical treatments which included injections in his leg and lower back by a different physiatrist. The worker reported that the injections had not helped.
It was noted that the worker suffered a heart attack in June 2004 but the worker’s representative acknowledged that this condition is not related to the worker’s injury.
A worker advisor provided additional written comments in a letter dated May 9, 2007 after receiving copies of medical reports from two treating physicians. The worker advisor noted that the worker was able to perform his full-time duties before the August 2002 injury and that the worker’s symptoms arose out of the injury and have not resolved. She submitted that the evidence on file, including the recent reports, support the worker’s disability continues in the L5-S1 and right hip/buttock areas and originated from his workplace accident.
Employer’s Position and Evidence at the Hearing
The employer was represented by its human resources officer who made a submission on behalf of the employer.
The employer representative advised that on January 13, 2003, the worker was given medical clearance to resume full-time hours and duties which he did until going off work permanently on May 5, 2003.
The representative noted that the worker was originally diagnosed and treated for lumbar strain/sprain, was afforded a four-month recovery period and then returned to work with a physician’s consent and after completing a four week reconditioning program. He advised that the employer agrees with the Review Office decision.
Analysis
The issue before the panel was whether the worker is entitled to compensation benefits and services beyond January 10, 2003. For the appeal to be successful, the panel must find that the worker’s medical condition as of January 10, 2003 continued to be related to his workplace injury. As the worker is also seeking wage loss benefits, the panel would also have to find that the worker’s symptoms which caused him to leave work in May 2003 were related to the workplace injury and were sufficient to preclude him from working at that time. The panel is not able to make these findings.
The panel notes that the worker was initially diagnosed with a strain/sprain injury. It was reported as a lumbosacral strain/sprain and a strain of the lumbar and right hip. On October 1, 2002 a sports medicine specialist commented that the worker’s signs and symptoms are likely secondary to mechanical low back pain (internal disc disruption).
The panel also notes that the worker participated in a reconditioning program in November and December 2002. He then participated in a graduated return to work program which returned the worker to work by January 13, 2003. Without a new accident or significant triggering event the worker stopped work on May 5, 2003. At the hearing, the worker explained that the pain became too great and he had to stop working.
The panel finds, on a balance of probabilities, that the worker’s symptoms which resulted in his departure from his employment in May 2003 and the commencement of his loss of earning capacity are not related to his workplace injury.
The panel notes that the worker was seen by many specialists after May 5, 2003 and that numerous medical theories have been advanced to explain the worker’s symptoms. The position advanced on behalf of the worker at the hearing was that his symptoms are due to degenerative facet joint arthropathy and myofascial pain which developed as a result of the workplace injury.
Regarding the diagnosis of myofascial pain, the panel notes that the physical and rehabilitation medicine specialist who initially treated the worker from October 2003 to December 2004, did not diagnose myofascial pain and refers to the worker’s condition as non-specific low back pain. The panel followed up with this specialist for clarification of his examination findings, given that myofascial pain issues fall within his particular discipline. The specialist advised that his consultation notes made no reference to myofascial findings but that his clinical notes indicated some tenderness.
A different physical and rehabilitation medicine specialist who treated the worker from May 2005 to January 2007 noted in a May 3, 2007 report that:
“I had initially trialed a treatment approach to deal with some of his pain complex, specifically the soft tissue dysfunction. Although he did seem to respond clinically, albeit not much symptomatically, there was justification to continue treatments until the soft tissue discomforts on palpation had resolved or improved maximally. Two other physicians agreed with this theory. However, this theory does not support the fact that the pain persists…”.
After consideration of this medical evidence, and in particular the absence of myofascial pain findings in the earlier stages of the claim, the panel finds, on a balance of probabilities, that the workplace injury did not cause the worker’s later diagnosis of myofascial pain.
Dealing with other medical conditions noted on the file, the panel notes that the imaging studies have confirmed that the worker has pre-existing multilevel osteoarthritic facet joints. The panel notes and relies upon the July 23, 2004 opinion of the WCB’s orthopedic consultant regarding the worker’s diagnosis. He opined that the August 2002 fall would not cause an enhancement of the pre-existing condition and that the worker’s ongoing problem is mechanical low back pain due to osteoarthritis.
The panel notes that the worker was able to return to work for approximately four months in 2003 but left work without a new accident or significant triggering event and indicating that his symptoms had worsened. The panel considers this to be more consistent with a worsening of the worker’s non-compensable pre-existing condition than the worsening of the initial strain/sprain workplace injury.
Given the panel’s findings, the worker’s appeal is declined.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
C. Monk, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 27th day of June, 2007