Decision #124/07 - Type: Workers Compensation

Preamble

This appeal deals with whether or not the worker’s current back problems are related to his compensable strain injury that occurred on August 18, 1997. On August 22, 2007, a hearing was held at the Appeal Commission to consider the matter. On the same day, the panel rendered its final decision.

Issue

Whether or not responsibility should be accepted for the worker’s current low back difficulties.

Decision

That responsibility should not be accepted for the worker’s current low back difficulties.

Decision: Unanimous

Background

On August 18, 1997, the worker reported that he injured the right side of his low back and sprained his tailbone and back when he lost his footing and fell off a truck while putting on a tarp. He was seen by a general practitioner the following day for medical treatment and was diagnosed with a mechanical back sprain. On August 25, 1997, chiropractic treatment was also sought and the worker was diagnosed with an acute paraspinal lumbar muscle strain with concurrent right SI joint dysfunction. The claim for compensation was accepted and benefits were paid to the worker during his absences from work. By February 1998, the WCB determined that the worker had essentially recovered from his workplace injury and that he was not entitled to further benefits. Between this date and 2005, there was no further contact between the worker and WCB regarding this injury.

On January 25, 2005, the worker claimed that while walking to work on November 22, 2004 his low back gave way. He stated “My injury is due to repetitive lifting and cutting. I work on the end of the line. I grab all the loins off the line. I then weigh them. If the loins are over 4kg, I cut them. I stand 100% of the time at work. I have to bend when cutting and then twist to my left when pulling the loins back onto the line, after cutting. This has caused me to have pain in my lower back, numbness from my lower arm to my left fifth finger. It’s starting to effect my left fourth finger.”

The employer’s report of injury indicated that July 28, 2004 was the last time the worker reported any back problems. The worker came to work on November 24, 2004 to report that he slipped and fell on ice outside the hospital on November 22, 2004 (this was later confirmed by the worker).

On January 28, 2005, the worker advised his case manager that he was relating his current back problems and being off work since November 2004 to his compensable injury in 1997.

Medical information showed that the treating physician, in reports dated December 15, 2004 and January 17, 2005, diagnosed the worker’s back condition as spondylosis in the lower thoracic and lumbar spine with disc space narrowing in the lumbar spine and chronic lumbar back pain.

In a February 11, 2005 decision, the worker was advised that the WCB could not accept the cost of any ongoing medical treatment or time missed from work due to his current back difficulties on the basis that the diagnosis provided by his treating physician was not directly related to his 1997 workplace accident.

On February 24, 2007, the treating physician responded to questions posed by a worker advisor concerning the worker’s current back condition. The physician stated that the worker’s current diagnosis was “chronic lumbar back pain with sciatica radiculopathy with referred pain to his left leg. There is pain and tenderness over his lower back as well as tenderness over the sciatica nerve distribution in the left buttock area. There is a small right-sided S1 nerve root. The MRI report revealed a so-called black disc and slight bulge at the L5-S1 level.” The physician further opined that the spondylosis outlined in the medical report of December 2004 was related to the compensable injury that occurred in 1997. He noted that the worker’s treating orthopaedic specialist documented in his letter of October 13, 2006 that the worker clearly had mechanical back pain due to black discs. The treating physician felt there were causal relationships between the 1997 injury, the 2004 fall and the worker’s current low back condition.

On March 30, 2007, the WCB determined that the diagnosis provided by the treating physician on February 24, 2007 would not be directly related to the compensable accident of August 18, 1997 and that it would not accept the cost of any ongoing medical treatment or time missed from work as a result of the worker’s current back problems. On April 12, 2007, the worker advisor appealed this decision to Review Office on the worker’s behalf.

In its decision dated May 3, 2007, Review Office confirmed that no responsibility would be accepted for the worker’s current low back difficulties. Review Office indicated that it obtained a report from the worker’s treating orthopaedic specialist who stated that a recent MRI demonstrated chronic disc degeneration at L5-S1 with minimal bulge right central. His opinion was that the worker had chronic back pain which was mechanical in nature.

Review Office stated there was no medical evidence to support a continuity of signs and symptoms from 1997 to 1993 and that the worker did not seek medical treatment again until two non work related events in November 2004. The available evidence, including the diagnosis of a back sprain, the lack of ongoing medical treatment and the time that had passed supported the conclusion that there was no causal relationship between the worker’s current low back difficulties and the compensable injury of August 18, 1997. On May 17, 2007, the worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing took place on August 22, 2007.

Reasons

Worker’s Position

The worker advised that he believes his current back difficulties are related to his August 1997 work related injury. He indicated that since 1997 he has had intermittent episodes of back pain up to three or four times each year. He described various incidents that have occurred since 1997 which he attributes to the 1997 injury.

He advised that the pain he felt in the incidents was similar each time. The pain was centered near the waistline and was “…like I had been stabbed in the back for no apparent reason.” The pain would be throbbing and would take him off work for two to three days. He indicated that the pain could arise at any time. He stated “…it happens at work, it happens at home, just all of a sudden, like, I get stabbed in my back.”

In response to a question about an incident which occurred on November 22, 2004, the worker advised that he was walking across a parking lot on his way to work when his back suddenly hurt, causing him to drop to his knees. He indicated that he laid on the ground for five to ten minutes. He said it felt like he was stabbed in the back and that the pain was “pretty much the same” as prior pain. He acknowledged that he has not worked since this incident.

When asked why he related the incidents and his back condition to his 1997 injury he stated “Because, like I said, every, every so many months, like every six months I’d get a sharp pain in my back and that was the same feeling that I had when I was injured the first time.”

With respect to his current diagnosis the worker advised that a physician advised him that he has arthritis in his back. He advised that the physician explained that “because when I fell on my back I compressed my discs and now that they’re all compressed, when I bend and lift and twist I’m pulling them apart which causes arthritis to set in.”

Analysis

The issue before the panel was whether responsibility should be accepted for the worker’s current low back difficulties. At the hearing the worker stated that his current low back difficulties are related to his 1997 injury. For the appeal to be successful, the panel must find a relationship between the worker’s 1997 injury and the worker’s current symptoms. The panel has considered the worker’s position and the evidence on the claim file and has found, on a balance of probabilities, that the worker’s current low back difficulties are not related to his 1997 injury. Accordingly, the panel finds that responsibility should not be accepted for his current low back difficulties.

In arriving at this conclusion the panel attaches significant weight to the following:

  • the worker’s August 1997 injury was initially diagnosed as a mechanical back sprain. Wage loss benefits were paid until February 1998, after which time the worker was considered to have recovered.

  • the worker did not seek medical treatment for many years after 1998 and was able to sustain employment with minimal medical intervention. The lack of continuity of medical treatment suggests the current symptoms are not related to the 1997 injury.

  • the worker has recently been diagnosed with chronic disc degeneration at the L5-S1 with minimal bulge right central. The medical information on the 1997 injury file does not identify a disc injury; accordingly the panel is unable to causally relate the current diagnosis to the 1997 injury.

  • degenerative changes have also been found in the worker’s neck which was not involved in the 1997 accident. As well, the panel notes that the x-ray of the lumbar spine confirmed well maintained disc height throughout, which is at odds with the worker’s explanation of compressed discs from the 1997 injury.

The panel finds on a balance of probabilities, that the worker’s current condition is not related to the 1997 injury and that responsibility should not be accepted for his current low back difficulties. The worker’s appeal is declined.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 26th day of September, 2007

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