Decision #101/07 - Type: Workers Compensation
Preamble
This appeal deals with the relationship between the worker’s workplace injuries and her pre-existing condition.
The worker filed a claim with the Workers Compensation Board (WCB) for injuries that occurred in October 2000. No specific accident was identified, rather the worker related her back problems to an increase in workload. The worker’s claim was accepted and benefits were paid until October 2005 when it was considered that the worker had recovered from the effects of her injury. The worker appealed to Review Office which upheld the WCB’s decision. The worker then appealed to the Appeal Commission on the issue of entitlement to benefits. The worker also asked that a Medical Review Panel (MRP) be convened. This request was denied and the worker also appealed this issue.
A hearing before a panel of the Appeal Commission was held on November 1, 2006. The worker, her representative and the employer representative participated via teleconference.
Issue
Whether or not a Medical Review Panel should be convened pursuant to subsection 67(4) of the Act; and,
Whether or not the worker is entitled to wage loss benefits beyond October 7, 2005.
Decision
That a Medical Review Panel should be and was convened pursuant to subsection 67(4) of the Act; and,
That the worker is not entitled to wage loss benefits beyond October 7, 2005.
Decision: Unanimous
Background
The worker has prior claims with the WCB for back injuries starting in October 1997.
On her application for compensation benefits dated October 25, 2000, the worker indicated that she was unable to move without assistance due to pain in her low back on the morning of October 7, 2000. She said she had been working extremely hard the week before as they were working short-handed and the staff shortage had been ongoing since July 2000. The worker also noted that she was hospitalized on October 12-13, 2000 and October 17-24, 2000.
Medical reports confirmed that the worker was admitted to hospital on two occasions in October 2000 due to back pain. On November 1, 2000, the treating physician indicated that the worker complained of backache from persisting pulling of trolleys. She had previous backache at the L5-S1 level. The physician diagnosed the worker with an L5-S1 disc and a CT scan was ordered. The worker’s claim was accepted and benefits were provided.
Subsequent file records show that the worker attended an occupational rehabilitation program with the goal being to decrease her self-limiting activities secondary to pain while increasing her overall ability to return to employment on a full time basis without the need for restrictions. The worker’s condition was also followed by a psychiatrist and by a WCB psychiatric consultant.
On April 13, 2004, an orthopaedic specialist commented that the worker continued to have ongoing mechanical lumbar back pain despite nerve like symptoms with no significant nerve malfunction or significant nerve root irritation. Another MRI was recommended and was carried out on June 9, 2004. On October 6, 2004, the orthopaedic specialist recommended a further MRI to see if there was ongoing disc herniation at the L3-4 level and a bone scan to see if an area could be isolated from facet joints causing her main symptoms.
On May 24, 2005, the MRI of the lumbar spine revealed no interval change in the multilevel disc disease in the lumbar spine.
In a letter to the worker dated June 15, 2005, the orthopaedic specialist indicated that the MRI findings were essentially unchanged from the MRI done on June 9, 2004. The worker had drying out of L1-2, L4-5 and L5-S1 discs. There was right sided bulging at L3-4. There was diffuse bulging at L4-5 and central and right sided bulging at L5-S1. The specialist advised the worker that there was not one specific level that could explain all her symptoms and that surgery was not indicated but pain control and exercising was critical.
On August 23, 2005, the worker was assessed by a WCB medical advisor. Following the assessment, the medical advisor met with the WCB case manager. In a memo to file dated September 7, 2005, the medical advisor stated that what occurred in her spine were degenerative conditions independent of anything related to her compensable injury. He stated that based on his review of the original compensable injury, the findings and subsequent imaging studies, that the original compensable injury aggravated but did not enhance her symptoms and that she had long since recovered. In his opinion, the worker’s current symptoms related to her increasing degenerative findings of her lumbar spine and did not relate to the original compensable injury or any sequelae thereof.
In a decision dated September 23, 2005, the case manager outlined his decision to the worker that based on a balance of probabilities, she had recovered from the effects of her workplace injury and her ongoing difficulties were related to her degenerative back conditions. In accordance with subsection 39(2) of The Workers Compensation Act (the Act), he indicated that wage loss benefits would be paid to October 7, 2005 inclusive and final.
On December 6, 2005, a worker advisor asked the case manager to reconsider his decision based on a report from the treating physician dated November 14, 2005. The worker advisor argued that this report confirmed that the worker had not recovered from her compensable injury and that her ongoing time loss was a direct result of her injury. In the event that the case manager decided not to change his opinion of September 23, 2005, an MRP was requested to resolve the difference of medical opinion. The worker advisor also advanced the position that the worker was restricted from performing her employment and should therefore be referred to the WCB’s Vocational Rehabilitation Department for assistance.
In a decision dated February 8, 2006, the case manager informed the worker advisor that after consulting with a WCB medical advisor, the new medical report of November 14, 2005 did not contain any new information to warrant a change in the original decision. With respect to the convening of an MRP, the case manager indicated that this issue had been forwarded to a sector manager for review.
On February 16, 2006, a sector manager advised the worker advisor that the treating physician’s statement that the worker’s pre-existing condition was enhanced by her compensable injury was not supported with evidence and that the physician’s statement did not constitute a full statement of facts and reasons supporting a medical conclusion. On this basis and in accordance with subsection 67(1) of the Act, an MRP would not be convened. This decision along with the case manager’s decision of February 8, 2006 was appealed by the worker advisor to Review Office.
On May 19, 2006, Review Office rendered the following decisions:
- That the worker had recovered from the effects of her October 6, 2000 accident - Review Office did not consider that the worker’s accident or the nature of her employment caused any of the degenerative changes found in the June 24, 2005 MRI. It felt the worker would have developed significant premature and progressively worsening degenerative changes in her lumbar spine regardless of the nature of her work. Review Office felt that the worker’s aggravation had resolved by when the case manager ended wage loss benefits. Review Office further commented that WCB policy 44.10.20.10, Pre-Existing Conditions, had no application in this case since it was determined that the worker’s compensable injury had resolved.
- That the worker should not be provided with vocational rehabilitation assistance - Review Office stated that since it was considered that the worker was no longer suffering from the effects of her accident, she had no entitlement to vocational rehabilitation assistance.
- That an MRP would not be convened - Review Office indicated that the reports referred to by the worker advisor in his request for an MRP did not meet the test of being considered an opinion. It stated that the issue of whether the degenerative changes of the worker’s back were the result of her employment in general was an adjudicative one, not a medical one. It stated the WCB did not accept that degenerative changes of a spine were the result of any worker’s employment activities, no matter how strenuous they were.
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.
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 October 7, 2005 is related to her workplace injury.
The worker has asked that an MRP be convened pursuant to subsection 67(4) of the Act. This subsection provides that where there is a difference of opinion on a medical matter between a physician treating the worker and a WCB medical advisor which affects the worker’s entitlement to compensation, an MRP must be convened.
Worker’s Position
The worker was represented by a worker advisor who made a submission on her behalf. The worker answered questions posed by her representative and the panel.
The worker asked that an MRP be convened. In support of this request the worker’s representative compared the opinion of three treating physicians with the opinion of a WCB medical advisor. He stated that the major difference of opinion is on the issue of whether the worker incurred a serious work-related injury in 2000.
Regarding the worker’s entitlement to wage loss benefits beyond October 7, 2005, the worker’s representative referred to a November 14, 2005 report from the worker’s treating physician. The physician reported that the worker had not recovered from the effects of her injury and that her pre-existing condition had been enhanced by the injury.
The worker’s representative stated that a comparison of CT scans from January 1998, before the accident, and December 2000, after the accident, show that there is a disc protrusion reported at L5 in December 2000 which was not reported in January 1998.
The worker’s representative referred to the May 9, 2006 report of an orthopedic surgeon which he said confirmed that the worker’s condition was enhanced by repetitive strain and work-related injuries. He also referred to a May 16, 2006 report from a physical and rehabilitation medicine specialist which states that it is highly probable that the worker’s present situation has arisen from her work as there is no history of previous injuries outside of her workplace.
The worker’s representative asked the worker whether there was a specific incident on October 6, 2005 where she felt a sudden onset of pain. The worker advised that there was a specific incident involving the moving of carts.
Employer’s Position
The employer was represented by an advocate who made a submission on behalf of the employer.
The employer’s representative submitted that there was no significant difference of opinion on this claim. He stated that the difference of opinion is more of an adjudicative issue than a medical issue, whether a specific accident or the general work duties caused the worker’s degenerative changes.
On the question of entitlement to wage loss, the employer’s representative acknowledged that the worker has significant and disabling multiple back conditions. He stated that the employer defers to the WCB’s orthopedic specialist who has opined that the worker has multiple degenerative changes in her spinal column and that these changes have worsened over time regardless of what she does physically and there has not been a positive correlation between the diagnostic imaging findings and the worker’s subjective complaints of pain.
Analysis
Whether or not a Medical Review Panel should be convened pursuant to Subsection 67(4) of the Act
The panel found a difference of opinion and directed that an MRP be convened in accordance with subsection 67(4) of the Act, to address the questions regarding the development and worsening of the worker’s medical condition. The particular differences of opinion are noted in the May 9, 2006 orthopaedic surgeon’s report of an enhancement of a repetitive strain injury, and the September 7, 2005 WCB medical advisor’s report suggesting that the worker’s ongoing symptoms are related to degenerative and non compensable changes in her lumbar spine.
An MRP was held on April 19, 2007.
The worker’s appeal on this issue was allowed.
Whether the worker is entitled to wage loss benefits beyond October 7, 2005
The issues before the panel are whether the worker is entitled to wage loss benefits after October 7, 2005. For this appeal to succeed, the panel must find that the worker’s loss of earning capacity beyond this date was causally related to her workplace injury. The panel was not able to make this determination.
As noted above, an MRP was convened pursuant to subsection 67(4) of the Act. The MRP consisted of a chair and two orthopaedic specialists and met on April 19, 2007. At that time the MRP members interviewed and examined the worker. The MRP was asked several questions in relation to the worker’s October 2000 workplace injury and gave the following answers:
“Question #2a:
What was the nature and extent of any pre-existing low back condition that the claimant had as of October 2000?
Answer:
Historically, the worker had several episodes of low back pain dating back to the early 1990s. Radiological evidence for a pre-existing condition began to appear in 1997 when an x-ray of the lumbosacral spine performed Nov. 4, 1997 demonstrated disc space narrowing and osteophytes at the L5-S1 level. In December 2000 a CT scan revealed L4-5 disc bulging on the left and minimal disc bulging at L5-S1 on the right.
An MRI performed in April 2001 showed desiccation at the L4-5 level disc and moderate degenerative narrowing and desiccation at the L5-S1 level. The opinion of the radiologist is that disc desiccation generally takes a few years to show up radiologically and therefore the start of the problem occurred several years earlier. He also opined that the November 1997 x-rays show evidence of an L4-5 annular tear and again indicated that this would have taken several years to develop.
This is all strongly suggestive of a pre-existing low back condition starting several years prior to 2000.
Question #2b:
Was the worker’s pre-existing condition unaffected, temporarily aggravated, or permanently enhanced as a result of her work activities in October 2000?
Answer:
The pre-existing condition was temporarily aggravated as a result of the work activities in October 2000 and the panel is of the opinion that this temporary aggravation would have lasted at least until 2002.
Question #3a:
Are the worker’s current low back symptoms related to her October 2000 workplace injury?
Answer:
The worker’s current low back symptoms are not related to her October 2000 workplace injury.”
The panel relies upon the opinion of the MRP. The panel accepts the MRP findings that the worker’s pre-existing condition was temporarily aggravated as a result of work activities in October 2000 and that the worker’s current low back symptoms are not related to her October 2000 workplace injury. The panel finds, on a balance of probabilities, that the worker is not entitled to wage loss benefits beyond October 7, 2005.
The worker’s appeal on this issue is denied.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
B. Malazdrewich, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 25th day of July, 2007