Decision #104/07 - 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 workplace injury on April 25, 2005. He applied to the Workers Compensation Board (WCB) for benefits. His claim was accepted by the WCB and benefits were paid until October 21, 2005. The WCB determined that the worker’s symptoms after that date were not related to the worker’s workplace injury. The worker appealed this determination to the Review Office which upheld the WCB’s decision. The worker then appealed to the Appeal Commission.
A hearing was held on July 4, 2007 at the worker’s request. Following the hearing, the panel met and rendered its final decision.
Issue
Whether or not the worker is entitled to wage loss benefits beyond October 21, 2005.Decision
That the worker is not entitled to wage loss benefits beyond October 21, 2005.Decision: Unanimous
Background
On April 25, 2005, the worker reported that he was using a shovel to fill holes with sand after drilling when he felt sharp pain in his low back. When he sought treatment on April 28, 2005, the treating chiropractor diagnosed the worker with an acute lumbosacral sprain/strain. X-rays taken April 29, 2005 revealed facet asymmetry and minor osteophyte changes at T11, L3 and L4.
Subsequent file records show that the worker complained of pain and weakness in his lumbar spine and both legs. At the advice of his treating physician, he underwent a CT scan which was carried out on August 24, 2005. The results showed a mildly narrowed disc at L3-L4 with no focal disc protrusion, nerve root compression or spinal stenosis. At L4-L5 there was mild right sided facet osteoarthritis. No focal disc protrusion, nerve root compression or spinal stenosis was identified. At L5-S1, there was a tiny central disc protrusion. No nerve root compression or spinal stenosis was identified.
Reports received from the treating physician in July and August 2005 indicated that the worker had difficulty in bending, standing on his heels and tenderness over his lumbar spine.
On September 21, 2005, the worker was examined by a WCB medical advisor. The medical advisor stated the worker’s injury really dates from repetitive bending, stooping and crouching with some evidence of facet arthropathy in the lumbosacral spine. The main thrust of the exam was focused on the worker’s right hip. He had reduction of range of motion of the right hip and marked atrophy of the hip rotators of the buttock area, both gluteus maximus and medius and also of the thigh and foot muscles. This suggested a degenerative process occurring on the right side. Further investigation was recommended.
The worker underwent further x-rays on September 26, 2005. The report showed mild thoracic scoliosis convex to the right. Osteophytes were present at these levels. In the lumbar area, there was quite diffuse anterolateral marginal spurring. Disc space heights and facet joints were unremarkable. The SI joints were normal.
On October 13, 2005, a WCB medical advisor stated he reviewed the x-rays of the lumbar spine and right hip and that the worker’s lumbar spine showed diffuse degenerative disc disease. He stated the worker suffered a sprain/strain of the low back and was now recovered from any effect of this. He felt the worker’s current complaints were related to his pre-existing condition. The right hip showed no changes on x-ray but gave fair evidence of osteoarthritis on exam.
On October 13, 2005, the case manager advised the worker that he was not entitled to wage loss benefits beyond October 21, 2005. It was the case manager’s view that the worker had recovered from the effects of his workplace injury and any ongoing complaints were due solely to a pre-existing condition. She stated this condition was not caused by the compensable injury and the compensable injury was no longer contributing to his ongoing problems.
On March 21, 2006, a worker advisor appealed this decision on the worker’s behalf to Review Office. Included with his submission was a report from a physical medicine and rehabilitation specialist dated March 14, 2006. The worker advisor requested the worker’s reinstatement of benefits and if not the case, then a Medical Review Panel was requested based on a difference of medical opinion.
Following consultation with a WCB medical advisor, the worker was advised on April 28, 2006 that it remained the opinion of the WCB that he had recovered from the effects of his compensable accident and any ongoing complaints were due solely to a pre-existing condition.
On May 11, 2006, a WCB Sector Services manager with sector services advised the worker that an MRP would not be convened as the requirements of subsections 67(1) and 67(4) had not been met.
The case was then considered by Review Office on June 13, 2006 and it confirmed that the worker was not entitled to wage loss benefits beyond October 21, 2005 and that there was no basis to convene an MRP under subsection 67(4) of the Act. Review Office indicated that an opinion was solicited from the orthopaedic consultant to Review Office. He believed that the most probable diagnosis of the worker’s at-work injury was an aggravation of mechanical back pain related to multilevel degenerative changes. He concluded that the effects of the workplace activity would long since have resolved, with any ongoing complaints being attributable to the worker’s pre-existing degenerative changes in his low thoracic or lumbosacral spine. Review Office believed the weight of evidence, on a balance of probabilities, showed that the workplace injury was no longer playing a significant role in his ongoing complaints.
The worker advisor then provided Review Office with additional information from the treating physical medicine and rehabilitation specialist. The opinion expressed by the specialist was that the worker suffered from myofascial pain syndrome related to his April 25, 2005 work injury.
On January 30, 2007, Review Office advised the worker that the reports submitted by his specialist were reviewed by a WCB physical medicine consultant. “He is of the opinion that your ongoing complaints are more probably associated with pre-existing mechanical back pain, than being due to the effects of the injury which had its onset on April 25, 2005, after shoveling sand at work. It was noted by the Physical Medicine Consultant that when you were seen by a WCB Medical Advisor six months after your accident there was no evidence of muscle symptoms to palpation and no muscle problem identified. As such, he concludes there is no basis to suggest that you are suffering from myofascial pain syndrome due to the effect of any injury sustained on April 25, 2005.” On March 1, 2007, an advocate for the worker appealed Review Office’s decision and a hearing took place on July 4, 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 worker who has been diagnosed with 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 was represented by an advocate who made a submission on his behalf. The worker answered questions posed by the panel.
The worker’s representative described the worker’s accident. She noted that he was shoveling out a trench and using a push broom and, while he was shoveling, he straightened up and felt a burning sensation across his back into both hips. The representative disagreed with the WCB position that there was no specific incident which produced the injury. She said that as he finished shoveling the last shovelful, he had the pain and this was a specific incident.
The representative noted that the worker had no prior back injuries and no significant back problems. The representative acknowledged that the worker has a pre-existing condition but that it is not a severe pre-existing condition which would cause the worker’s symptoms.
The representative reviewed medical information and noted that the worker’s treating physical medicine specialist found that the worker’s pre-existing condition was aggravated but that if it had not been for the shoveling, the worker would probably have no symptoms. She noted that this physician found that the onset of the worker’s problems were the result of the work related incident in 2005. She also noted that this physician found that the worker is exhibiting irritability of muscles of the lumbar region and this is due to muscle strain rather than pre-existing degenerative change.
The representative submitted that the aggravation has become a permanent aggravation or enhancement.
In answer to a question, the worker indicated that he was away from work for an extended period in 2004 due to an unrelated medical condition.
The worker described his symptoms. He advised that the pain traveled down the front of his legs causing him to lose strength in his knees. He advised that his knees would give out and that he has fallen as a result.
In closing, the worker’s representative submitted that whatever was wrong with the worker’s back prior to the injury, it was asymptomatic, and since the injury the worker has shown symptoms that have remained fairly consistent. She stated there is no evidence on the file, medically or otherwise, that the worker has recovered from the effects of the injury.
Employer’s Position
The employer was represented by its safety, health and environmental resource staff person and its controller.
The employer representatives raised the issue of responsibility for the costs of the worker’s claim given the involvement of a pre-existing condition. The WCB cost relief policy was explained.
The representatives stated that the employer’s formal position is that given the nature of the injury, the worker’s condition should have resolved itself and the worker should have been well enough to return to work after the recovery period. The representatives acknowledged that the employer agrees with the WCB adjudication of the claim.
Analysis
The issue before the panel was whether the worker is entitled to wage loss benefits beyond October 21, 2005. 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 workplace 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 worker’s representative argued that the worker is entitled to benefits. She noted that the worker had no prior back problems and that his symptoms have been constant since the accident. She argued that the worker’s pre-existing condition was permanently aggravated or enhanced.
The panel found, on a balance of probabilities, that the worker’s loss of earning capacity after October 21, 2005, is not due to his workplace injury. The panel did not find a relationship between the worker’s workplace injury, which was initially described by the treating chiropractor as an acute lumbar sprain/strain and later as an aggravation of a pre-existing condition, and his ongoing symptoms.
The panel notes that the worker is currently being treated for a muscular condition by a physical medicine and rehabilitation specialist. This condition was first referenced in a report by this physician in March 2006 where he proposed to conduct myofascial trigger point needling. In a report dated November 17, 2006, the physician commented that “…his present symptoms are compatible with myofascial pain syndrome.”
The panel notes that the condition referred to by the treating physical medicine specialist was not identified initially and was not found when the worker was examined by a WCB medical consultant in September 2005. At that time, the WCB medical consultant thought that the worker’s symptoms suggested a degenerative process occurring on the worker’s right side. The panel finds that the time gap suggests that the muscular condition developed well after the workplace injury. The panel is therefore unable to relate the muscular symptoms to the workplace injury.
In arriving at this decision the panel relies upon the opinion of the WCB physical medicine consultant noted in a memo dated January 18, 2007.
The panel also notes that this worker has a degenerative back condition and that where a worker suffers from a degenerative back condition, the muscles often adapt to the condition and result in muscular problems. The sequence in which the symptoms appear to have emerged suggests that this may be the case here.
Dealing with the issue of enhancement, the panel notes that the worker has pre-existing degenerative changes in his back which have been confirmed by diagnostic tests. However, the panel did not find that the worker’s pre-existing condition was enhanced by the workplace injury. The panel notes there was no radiological evidence of enhancement. As well, the panel notes that the orthopedic consultant to Review Office reviewed the file and opined in June 2006 that the workplace activity would not enhance the pre-existing degenerative changes.
The panel finds, on a balance of probabilities, that the worker’s loss of earning capacity is not the result of the workplace injury and accordingly that the worker is not entitled to wage loss benefits beyond October 21, 2005.
The appeal is denied.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
L. Butler, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 30th day of July, 2007