Decision #90/07 - Type: Workers Compensation
Preamble
This appeal by the worker deals with the relationship between the worker’s workplace injury and his pre-existing condition.
The worker suffered a compensable injury to his low back on December 15, 2004. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to the worker up until March 10, 2006 when it was determined that he had recovered from the effects of his compensable injury and his ongoing difficulties were related to his pre-existing degenerative disc disease. This decision was upheld by Review Office on August 4, 2006. It is this decision that the worker has appealed to the Appeal Commission. On May 24, 2007, a hearing was held via teleconference. The worker was represented by a worker advisor. Following the hearing, the panel met to discuss the case and rendered its final decision.
Issue
Whether or not the worker is entitled to wage loss benefits beyond March 10, 2006.Decision
That the worker is not entitled to wage loss benefits beyond March 10, 2006.Decision: Unanimous
Background
On December 15, 2004, the worker was picking up a concrete block and when he turned to his right, he felt a sharp pain in his low back, more towards his left side. He had trouble breathing afterwards. When seen for treatment on December 17, 2004, the worker was noted to have postural scoliosis, decreased range of motion and no neurological symptoms/signs. The diagnosis rendered was a strained lumbar back. The worker was then referred to attend physiotherapy treatments.
On December 17, 2004, x-rays of the lumbosacral spine revealed severe L4-5 and L5-S1 disc degeneration.
In a report to the family physician dated February 21, 2005, an orthopaedic specialist noted that the worker had normal lumbar lordosis and movement of the spine was almost complete in all directions associated with only slight pain. Straight leg raising was 80 degrees on either side with pain in the low back and left leg. Both hip and knee joints had normal range of movement. The diagnosis rendered was degenerative lumbar disc disease with a sprained back. A CT scan was ordered to rule out any lumbar disc prolapse.
A subsequent CT scan of the lumbar spine revealed “Far lateral disc herniation at L2-3 on the left. Left posterolateral disc herniation at L3-4.” Based on the CT scan results, the orthopaedic specialist opined that the worker did not require back surgery and was to continue with physiotherapy treatments.
On April 6, 2005, the orthopaedic specialist advised the WCB that the worker still complained of low back pain aggravated with activity. He felt the worker should be considered for an alternative sedentary job as he did not think he could go back to his pre-accident employment as a mason.
As the worker’s back condition did not improve with physiotherapy treatments, the treating physician requested an examination by a WCB medical advisor. On June 21, 2005, the examining WCB medical advisor provided the following opinion:
“…history and examination today suggest the claimant has an injury to a pre-existing facet arthropathy and also injury to his sacroiliac joint on the left side. The claimant also is tender over the trochanteric bursa of the left hip. This will require an x-ray of the left hip in order to exclude any other degenerative process occurring in the left hip joint. Associated with this, there is also some muscle injury particularly, in my opinion, in the left gluteus maximus. I have difficulty, however explaining the obvious discomfort the claimant is having with the other thigh muscles, particularly the adductors. I cannot relate this directly to the imaging study of the disc at L2-L3 on the left side.”
The medical advisor outlined physical restrictions for a two month period and that he would speak with the treating physician regarding an x-ray of the hip and a possible referral to the Pain Clinic.
On June 21, 2005, both hips were x-rayed and the impression read “Minor osteoarthritis of both hips. The differential diagnosis of the soft tissue calcification lateral to the right hip joint would include an injection granuloma posteriorly, calcification post trauma, and calcific tendinitis.”
On July 13, 2005, the WCB medical advisor advised primary adjudication that the current compensable diagnosis was an aggravation of facet arthropathy and an SI joint sprain.
The worker was assessed at the Pain Clinic on August 13, 2005. The treating pain specialist indicated that the worker’s symptoms had characteristics of mechanical back pain possibly related to the degenerative changes in the lower lumbar spine. The worker’s groin pain may also be related to this etiology however there may be some irritation from one of the disc protrusions that could also contribute to similar symptoms. A trial of facet joint blocks at L4-L5 and L5-S1 bilaterally was carried out on September 10, 2005 to see if these joints were contributing significantly to the worker’s pain.
At a follow up visit on September 24, 2005, the pain specialist reported that the worker gained 50 percent improvement in his back pain after the facet joint block. Repeat injections were suggested and approved by the WCB.
On October 29, 2005, the worker told the pain specialist that his back pain continued to improve since his previous facet joint blocks and he did not feel he required further injections. He still had some discomfort in his low back with activity but it was mild.
At an examination at the WCB on November 2, 2005, the worker told the WCB medical advisor that the pain in his low back felt considerably improved but he continued to have pain in the inner thighs which was fairly constant. Any rotatory movement and when standing in a fixed position caused him low back discomfort particularly on the left side. After examining the worker, the medical advisor concluded that the worker had better pain control than was apparent on the last visit. The worker was experiencing pain in his adductors and this was probably related to both hip joints. The worker had marked reduction in range of movement in both hips. A Functional Capacity Evaluation was suggested to outline restrictions. This was later carried out on May 12, 2005 and it showed that the worker did not provide a full voluntary effort passing 2 of 5 validity checks.
On January 24, 2006, a WCB medical advisor recommended a reconditioning program and then a possible return to work.
On February 1, 2006, a WCB case manager advised the worker that because of the presence of degenerative disc disease and the amount of time that he had been off work, a four week reconditioning program was being arranged after which his WCB benefits would end.
At the intake assessment on February 3, 2006, the physiotherapist advised the WCB that the worker demonstrated significant stiffness and tightness to the hip joints and the hip and thigh musculature. There was moderate stiffness noted in the lumbar spine and sacroiliac joints with extension being the most limited movement. Details regarding the reconditioning program were outlined.
In the discharge summary report of March 14, 2006, the treating physiotherapist indicated that the worker continued to complain of primarily left sided lumbosacral discomfort. He demonstrated light to medium physical abilities. He presented with significant restrictions involving the hip and sacroiliac joints. He also stated that the worker repeatedly stated that participation in the reconditioning program had convinced him that he will never return to his job which required heavy physical demands.
In a letter to the worker dated March 1, 2006, the WCB case manager clarified his previous decision of February 1, 2006. He outlined his opinion that the work event in December 2004 aggravated the degenerative conditions in the worker’s lumbar spine and that there was no evidence that the injury had any effect on the degenerative conditions in his hips. The symptoms in the worker’s thighs could not be related clinically to either his injury or to the degenerative conditions. His failure to pass the validity checks in the FCE indicated a lack of full voluntary effort. It was felt the worker had recovered from the effects of his compensable injury and after he completed his reconditioning program, wage loss benefits would end on that date (i.e. March 10, 2006).
On June 21, 2006, a worker advisor provided the WCB case manager with a report from the worker’s treating physician dated June 2, 2006 to support the position that the worker continued to suffer the effects of his workplace injury and that his injury was preventing him from returning to his pre-accident duties.
In his June 2, 2006 letter to the worker advisor, the treating physician noted that the worker remained unable to return to his pre-accident duties due to chronic lumbar back pain, exacerbated by extension and rotation movements of the lower back and from lifting weights in excess of 3 kgs from the floor up. There were no neurological signs in spite of the reported lumbar disc and articular degenerative changes, the problem appearing to be of a mechanical nature. In his opinion, the worker’s permanent restrictions were due to the accident which caused enhancement of his pre-existing condition involving the lumbar spine.
On July 28, 2006, a WCB case manager determined that the new information from the treating physician did not alter the WCB’s position of March 1, 2006. The case was then forwarded to Review Office for consideration.
In an August 4, 2006 decision, Review Office confirmed that the worker had recovered from the effects of his compensable injury by March 10, 2006. It felt that while the worker continued to be symptomatic, his symptoms, on a balance of probabilities, originated from his pre-existing condition and were no longer causally related in any manner to the compensable injury. The symptoms more likely reflected the progressive nature of the degenerative changes in his back and hips. Review Office further clarified its decision in a memo to the Appeal Commission dated March 22, 2007. It stated that subsection 39(2) of The Workers Compensation Act (the Act) indicates that wage loss benefits are paid until the loss of earning capacity ends. Given the determination that the worker had recovered from the effects of his compensable injury, it followed that he was no longer experiencing a loss of earning capacity in relation to the compensable injury. The worker advisor then appealed Review Office’s decision and a hearing was held via teleconference on May 24, 2007.
Reasons
Applicable Legislation
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.
This case involves a pre-existing condition. The Board of Directors made Board Policy No.44.10.20.10, Pre-existing Conditions, which provides when the WCB will accept responsibility for pre-existing conditions. This policy provides 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 WCB will accept responsibility for the full injurious result of the accident.
Worker’s Position and Evidence at the Hearing
The worker participated in the hearing via teleconference. He was represented by a worker advisor who made a submission on his behalf. The worker answered questions posed by his representative and the panel.
The worker’s representative submitted that the evidence on file supports that the worker continued to have symptoms related to the compensable injury, which played a significant part in his inability to return to his pre-accident employment.
The worker described his duties as a bricklayer. He described the job as involving continuous movement, involving bending and turning. He noted that he worked with heavy concrete blocks and lighter bricks. Some blocks weighed as much as 25 to 27 pounds.
In response to questions, the worker advised the panel that:
- he had no prior problems with his back before the accident
- he continues to have pain in the same spot on his lower back that he injured in the accident
- he no longer takes prescription medication because it bothered his stomach but uses Advil when needed
- certain movements trigger a sharp pain
- he worked as a bricklayer in the seventies and returned to bricklaying about five years before the accident
- he worked full time without any problems during the five year period
- he has not received treatment for his back nor seen a physician about his back since moving out of province
With respect to problems with the worker’s thigh area, he advised that his problem is with his back not his legs. He explained that he does use his legs more because of his sore back and that may result in some pain.
The worker advised that he has returned to work as a bricklayer. He advised that he worked as a bricklayer in July 2006, then in northern Manitoba for three months commencing in September 2006 and is now working out of province. He advised that he is not working at commercial sites but is doing residential work where he uses lighter materials. He also advised that at his current job he has not been able to work a full 40 hour week because of his injury.
The worker was asked about the treatments he received from a pain specialist. It was noted that the physician reported on October 31, 2005 that the worker stated that his back has continued to improve after the previous facet-joint blocks to a point where he does not feel that he requires further injections. The worker stated that he asked that the treatments be discontinued because it was not feasible to have more injections which caused numbness but did not cure the problem with his back.
The worker’s representative submitted that prior to the accident the worker had degenerative changes as demonstrated on x-ray and CT scan, but that was able to work at a physically demanding job for the previous five years without notable back problems. She advised that since the accident the worker has not been able to return to his pre-accident duties, rather has taken bricklaying jobs where the physical demands are not as great. She advised that the worker has suffered a loss of earning capacity which according to this treating physician is due to the effects of the compensable injury in combination with his pre-existing condition.
The representative submitted that in accordance with Board Policy 44.10.20.10, the worker is entitled to compensation benefits as he has sustained a loss of earning capacity due to the combined effect of his workplace injury and pre-existing condition.
Analysis
The issue before the panel was whether the worker is entitled to wage loss benefits beyond March 10, 2006. For this appeal to be successful, the panel must find that the worker sustained a loss of earning capacity after this date as a result of his compensable injury. In other words, the panel must find that the workplace injury alone, or in conjunction with, the worker’s pre-existing condition, caused the worker’s loss. The panel was not able to make this finding.
The panel finds, on a balance of probabilities, that the worker has recovered from his workplace injury and that his symptoms and loss of earning capacity beyond March 10, 2006 are not related to the workplace injury. The panel notes that the worker was initially diagnosed with a strained lumbar back which occurred while moving a concrete block and that there were no neurological findings to suggest a more severe injury.
The panel notes that the worker has a significant pre-existing condition as demonstrated by diagnostic tests. A CT scan showed degenerative changes in the worker’s back at all of the imaged levels from L2 to S1. The panel notes the opinion of a WCB medical consultant reported in a memo dated April 15, 2005 that there is no correlation between the disc herniations reported on the CT scan and the worker’s symptoms. As well, an x-ray demonstrated minor osteoarthritis of both hips.
The panel notes that the worker was referred to a pain specialist who opined in a report dated August 16, 2005 that the worker’s symptoms have characteristics of mechanical back pain possibly related to the degenerative changes in the lower lumbar spine. The physician treated the worker with facet joint blocks which appeared to be successful to the point that the worker advised the physician that he did not feel that he required further injections. At the hearing, the worker provided a different explanation for why he did not want more injections. The panel prefers the physician’s explanation for the discontinuation over that of the worker and notes that the worker had advised a WCB medical consultant on November 2, 2005 that he had a good response to pain control especially in his lower back.
The panel finds that the successful treatment of the facet joints supports a finding that the worker’s back difficulties were related to his pre-existing condition which was likely aggravated by the workplace injury. The panel finds that the aggravation had resolved when the treatments by the pain specialist were discontinued. The panel relies upon the opinion of the WCB medical consultant, noted in file memos dated July 13, 2005 and March 14, 2006, that the worker’s condition had been temporarily aggravated.
The panel notes that the worker is not receiving medical treatment for his injury. The panel also notes that the worker has returned to his pre-accident employment as a bricklayer but that he advises that he is not able to work full time hours. The panel is unable to attribute this to the workplace injury.
The worker’s appeal is declined.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 9th day of July, 2007